Sexual offences against children and young people

25.32 Each jurisdiction provides a range of offences concerning sexual conduct with children. These include, for example: sexual intercourse;^[55] attempts to have sexual intercourse;^[56] acts of indecency;^[57] procuring or grooming a child for ‘unlawful sexual activity’;^[58] and abducting a child with the intention of engaging in unlawful sexual activity.^[59]

25.33 Offences against children are commonly expressed in terms of the age of the victim. For example, there are offences against young children—under the age of 10, 12 or 13 years of age, depending on the jurisdiction^[60]—and offences against older children—generally under the age of 16,^[61] but in some cases 17,^[62] or 18 years of age.^[63] This gradation generally reflects the seriousness of offences against very young children. Accordingly, the sentences attached to those offences are higher than for those against older children. For example, in NSW, different penalties are provided where the child is under the age of 10 years (25 years imprisonment); between the ages of 10 and 14 years (16 years imprisonment); and between the ages of 14 and 16 years (10 years imprisonment).^[64] As for offences against adults, aggravating factors are also applicable to offences against children.^[65]

25.34 In some jurisdictions, consent by a person who is under the age of consent to sexual activity is excluded from operating as a defence to sexual offence charges, regardless of any similarity in age between the victim and the accused.^[66] However, many jurisdictions recognise that consent may play a role in such situations, and consequently there are a range of statutory formulations involving consensual sexual activity between young people under the age of consent but similar in age.^[67] For example, in Victoria, consent may be a defence to the offence of sexual penetration or an indecent act where the victim is aged 12 years and over and the accused is not more than two years older than the victim.^[68] In South Australia similarity in age is recognised as a defence where the victim is over the age of 16 years and the accused is under the age of 17 years.^[69] In Tasmania, consent is a defence, except in relation to anal sexual intercourse, where the victim is aged 15 years and over and the defendant is not more than five years older, or where the victim is aged 12 years or over and the defendant is not more than three years older.^[70]

25.35 A related issue, of particular relevance in cases involving older children, is that of the age of consent. Historically, there were significant inconsistencies within and across jurisdictions with respect to the age of consent—the age at which young people are considered able to consent to sexual activity— based on gender, sexuality and other factors. Despite significant reforms, some inconsistency remains. For example, Commonwealth legislation sets the age of consent at 16 years of age,^[71] which is consistent with legislation in NSW, Victoria, Western Australia, ACT and the NT.^[72] However, the age of consent is 17 years of age in South Australia and Tasmania,^[73] and legislation in Queensland distinguishes between vaginal sex and sodomy, in relation to which the age of consent is 16 and 18 years of age respectively.^[74]

Offences by a family member

25.36 State and territory criminal law provides for a range of incest offences,^[75] where the victim and the accused are closely related. For example, Victorian legislation provides that a person must not take part in an act of sexual penetration with a person whom he or she knows to be:

• his or her child or other lineal descendant or his or her stepchild;

• the child or other lineal descendant or the stepchild of his or her de facto spouse;

• his or her father or mother or other lineal ancestor or his or her stepfather or stepmother; or

• his or her sister, half-sister, brother or half-brother.^[76]

25.37 Similarly, in most other jurisdictions sexual activity occurring in the context of biological and adoptive relationships or involving half-sisters and brothers or step-sisters and brothers is covered by the incest provisions.^[77] However, legislation across jurisdictions is inconsistent with respect to whether incest offences also cover conduct arising in the context of de facto relationships or those arising from fostering and other legal arrangements.^[78] Overall, incest type offences do not tend to make provision for offences arising in communities which may have extended family and kinship definitions and structures—as is the case within Aboriginal and Torres Strait Islander and some CALD communities.

25.38 In some jurisdictions, these offences apply to all age groups—that is, children and adults.^[79] In others, general offences in respect of children are applicable, and the incest offence relates to cases where the victim is over 16 years of age.^[80]

Offences where the accused is in a position of trust or authority

25.39 A number of jurisdictions have introduced offences that apply to a defendant who has a special relationship with the victim as a result of the defendant’s position or authority, or the care that he or she provides to the child—for example, as a teacher, religious guide, doctor, employer or sports coach.^[81] The former Standing Committee of Attorneys-General Model Criminal Code Officers Committee (MCCOC)—now the Model Criminal Law Officers Committee—recommended offences of this kind in relation to sexual penetration, indecent touching, and indecent acts directed at a young person by a person in a position of trust or authority, and considered that young people up to two years over the age of consent may be vulnerable in this context. ^[82]

Consultation Paper

25.40 In the Consultation Paper, the Commissions proposed that the age of consent for all sexual offences should be set at 16 years of age.^[83] The Commissions also asked questions about sexual offences against children and young people, including with respect to the availability and content of defences involving similarity in age, and honest and reasonable belief as to age.^[84]

25.41 Some stakeholders supported the proposal that the age of consent for all sexual offences should be 16 years of age.^[85] It was noted, however, that a higher or lower age of consent may be appropriate in some situations. For example, NASASV supported a higher age of consent where there is a care relationship or incest.^[86]

25.42 Stakeholders also highlighted issues arising from underage consensual sexual activity. Legal Aid NSW noted that

an age of consent of 16 may well be out of touch with the sexual habits of many teenagers below this age and a fixed age of consent means that many teenagers engaging in consensual sex are committing a criminal offence.^[87]

25.43 Other stakeholders echoed this view, emphasising the need for provisions to ‘reflect contemporary practices in sexual relations between young people’,^[88] provided such relations are consensual.

25.44 Legal service providers in the Northern Territory, including the North Australian Aboriginal Justice Agency and the Northern Territory Legal Aid Commission (NTLAC), expressed particular concern about the prosecution of non-exploitative consensual (but under-age) teenage sexual behaviour following the Northern Territory Emergency Response and in light of mandatory sentencing provisions for sexual offences.^[89] NSW stakeholders highlighted similar concerns about the operation of NSW legislation on the basis that

all sexual contact with a child under 16, even consensual contact, is an offence, even where both parties are under 16. Secondly, an offence involving two juveniles is automatically ‘aggravated’ because it is designated as a ‘child sex offence’ which places the offence in a more serious category, attracting higher penalties. In addition, child sex offences attract the provisions of the Child Protection Register set up under the Child Protection (Offenders Registration) Act 2000 (NSW), even where the offender and the victim are both children.^[90]

25.45 Related to this issue, the Commissions asked how ‘similarity in age’ of the complainant and defendant should be dealt with.^[91] Some stakeholders opposed similarity in age being used as a defence, despite operating as a defence in many jurisdictions.^[92] Others emphasised that consent should remain a relevant consideration, or favoured the inclusion of lack of consent as an element of the offence in such circumstances.^[93] Other stakeholders suggested that there should not be an offence where the age gap is two years or less,^[94] or that similarity in age could be a relevant sentencing consideration.^[95]

25.46 Stakeholders held differing views about the defence of honest and reasonable belief that a person was over a certain age. For example, the Law Society of NSW, Legal Aid NSW and NTLAC suggested that such a defence should be available at any age. The Canberra Rape Crisis Centre and NASASV expressed the opposite view, arguing that it should not be available at any age.^[96] The Canberra Rape Crisis Centre observed that ‘the impact on the young victim is the same regardless of the belief of the perpetrator and this should be the primary consideration’.^[97] NASASV stated that ‘an honest and reasonable belief that a person was over a certain age is at best irrelevant and at worst likely to be used as a difficult-to-challenge defence of the heinous crime of engaging sexually with children’.^[98]

Commissions’ views

25.47 In considering offences involving children and young people there is a need to strike an ‘appropriate balance between the need to protect vulnerable persons from sexual exploitation, and the need to allow for sexual autonomy’,^[99] and to recognise the realities of sexual behaviour.

25.48 Issues of age of consent, similarity in age, or honest or reasonable belief that a person was over a certain age are much less likely to arise where sexual assault occurs in a family violence context and are, therefore, somewhat peripheral to this Inquiry. Accordingly, these issues were not matters on which the Commissions consulted widely.

25.49 The Commissions suggest that the age of consent for sexual offences should be set at 16 years of age. This is consistent with legislation in many jurisdictions and the approach taken by MCCOC, which considered the issue at length and received numerous submissions from a range of stakeholders.^[100] The Commissions’ recommendation, however, is that the age of consent for sexual activity should be made uniform both within and across jurisdictions, and that no distinction be made based on gender, sexuality or any other factor.

25.50 Similarly, the Commissions do not make any recommendation with respect to how similarity in age should be dealt with or the age at which a defendant should be able to raise an honest and reasonable belief that a person was over a certain age. The Commissions emphasise, however, that any review of the relevant legislative provisions or the exercise of prosecutorial discretion should recognise contemporary realities of consensual and non-exploitative sexual activity between young people.