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Similar Age Defence

This brief article discuses the legal defence of similar age and in what circumstances it can be used to defend a charge of some sexual offences. The defence of similar age was legislated in 2019 to prevent instances where teenagers were breaking the law by having consensual sexual contact with other teenagers where the age difference is no more than two years.

When can the Similar Age Defence Be Used?

As outlined in Section 80AG of the Crimes Act 1900 (NSW), this defence can be used when:

  • The age difference between the accused and victim is not more than two years, and 
  • The alleged victim was 14 years or older at the time of the offence. 

The defence of similar age can be employed in relation to several sexual offences in the Crimes Act 1900 (NSW), including:

  • 66C(3): Sexual intercourse with a child between 14 and 16 years of age
  • 66DB: Sexual touching of a child between 10 and 16 years of age
  • 66DD: Sexual act of a child between 10 and 16 years of age 
  • 73: Sexual intercourse with a person between 16 and 18 years of age under special care 
  • 73A: Sexual touching of a person between 16 and 18 under special care

It is important to note that the defence of similar age is only available to offences where a lack of consent is not an element to the charge.  For instance, it is not available for an offence such as ‘sexual intercourse without consent’.  Additionally, this defence cannot be used when an individual has been charged with the aggravated form of an offence.

Onus Of Proof in Similar Age Defence

The legislation also states that the prosecution has the onus of proving, beyond reasonable doubt, that the complainant was less than 14 years of age or that the difference in age between the complainant and the accused person is more than 2 years. In other words, once the similar age defence is used by the defence lawyer, it is up to the prosecution to prove why it does not apply.

Age of Consent in NSW

The age of consent in NSW is 16 years of age. This means that a person who is over the age of 16 can legally consent to sexual activity with other people in NSW. Under the Crimes Act 1900 (NSW), it is an offence to have sex with a child under the age of 16.  Consent is not considered a defence to this offence. The primary aim of the age of consent is to prevent sexual exploitation of children by older people. 

Why BSM Lawyers? 

Being charged with a sexual touching or sexual act offence is very serious.  It is important that you seek legal advice. Brander Smith McKnight’s criminal defence lawyers have extensive experience with sexual offences and have represented and achieved excellent results for our clients.  Our lawyers regularly attend the Local and District Courts.  We will listen carefully to you, review the documents from the police and liaise with the prosecutors to achieve the best possible outcome for you.

Brander Smith McKnight Law is conveniently located in Sutherland, Parramatta, Sydney CBD and Wollongong.


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