All Things Newz
Law \ Legal

What is the age of sexual consent in New South Wales? – Crime

[ad_1]


To print this article, all you need is to be registered or login on Mondaq.com.

The law says a person is unable to lawfully agree to sexual
activity such as sexual intercourse, sexual touching or a sexual
act before they reach a certain age, this is known as the
‘age of consent’
.

This means a person who engages in sexual activity with a child
under that age can be found guilty of a sexual offence regardless
of whether the child gave express or implied consent to the
conduct.

The age of consent is generally 16 years in New South Wales, but
there are important exceptions.

Two of these exceptions are contained in section 73 and 73A of
the Crimes Act 1900, which respectively make it an offence engage
in
sexual intercourse with a person under the age of 18 years if they
are under the ‘special care’
of a person, or to
sexually touch a person under special care.

Sexual
intercourse with a person under special care

Sexual Intercourse with a young person under special care is an
offence under
section 73 of the Crimes Act 1900
, which carries a maximum
penalty of 4 years in prison where the young person was at least 17
but less than 18 years of age, or 8 years in prison where the young
person was at least 16 but less than 17 years of age.

To establish the offence, the prosecution must prove beyond
reasonable doubt that:

  1. You had sexual intercourse with a young person

  2. You knew, or were reckless as to whether, he or she was a young
    person, and

  3. The young person was under your ‘special care’


‘Sexual intercourse’
is defined as:

  1. The penetration to any extent of a female’s genitalia, or
    the anus of any person, by any part of, or object used by, another
    person, or

  2. The introduction of a penis into the mouth of another person,
    or

  3. Cunnilingus, or

  4. The continuation of any of these activities

A ‘young person’ is someone aged at least 16 but less
than 18 years.

The young person was under your ‘special care’ if:

  1. You were his or her step-parent, guardian, authorised carer, or
    the de facto partner of his or her parent, guardian or authorised
    carer

  2. You were a member of the teaching staff at his or her
    school

  3. You established a personal relationship with him or her in
    connection with the provision of religious, sporting, musical or
    other instruction

  4. You were a custodial officer at an institution where he or she
    was an inmate, or

  5. You were a health professional and he or she was your
    patient

You cannot be found guilty if you were married to the young
person.

Sexual touching
of a person in special care

Sexual touching of a young person under special care is an
offence under
section 73A of the Crimes Act 1900
, which carries a maximum
penalty of 2 years in prison where the young person was at least 17
but less than 18 years of age, or 4 years in prison where the young
person was at least 16 but less than 17 years of age.

To establish the offence, the prosecution must prove beyond
reasonable doubt that:

  1. You sexually touched a young person, or you incited a young
    person to sexually touch themselves, or you incited a third person
    to sexually touch a young person, or you incited a young person to
    sexually touch a third person, and

  2. You did so intentionally


‘Sexual touching’
is defined as touching another person
with any part of the body, or through anything, including clothing,
where a reasonable person would consider it to be sexual.

Matters that are relevant when determining whether touching is
sexual include:

  1. Whether there is touching of the genitals, or the breasts of a
    female, or the breasts of someone who identifies as female

  2. Whether the act was for sexual arousal or gratification,
    and

  3. Whether any other aspect of the touching, or the surrounding
    circumstances, make it sexual

Touching is not sexual if it was carried out for a genuine
medical or hygienic purpose.

Again, a ‘young person’ is a person aged at least 16 but
less than 18 years, you cannot be found guilty if you were married
to the young person and special care has the same meaning as with
section 73.

Legal defences
to charges relating to

Under
section 80AG of the Crimes Act
, it is a specific statutory
defence to the charges below where you and the complainant were of
‘similar age’, which means the complainant was at least 14
years of age and you were no more than 2 years older:

  • Sexual intercourse with a child between 10 and 16 years of age,
    under section 66C of the Crimes Act;

  • Sexual touching of a child between 10 and 16 years, under
    section 66DB,

  • Sexual act with child between 10 and 16 years, under section
    66DD,

  • Sexual intercourse with child under special care under section
    73, and

  • Sexual touching of child under special cause under section
    73A.

General legal defences also apply, including duress,
self-defence and necessity.

Where you are able to raise evidence of the statutory defence or
a general legal defence, the onus then shifts to the prosecution to
disprove that defence beyond a reasonable doubt.

You are entitled to an acquittal if the prosecution is unable to
do so.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

POPULAR ARTICLES ON: Criminal Law from Australia

[ad_2]

Source link

Related posts

Autorenewal Lawsuit Alleges NFL+ Subscription Program Violated State Laws—But Does Not Name Any State Autorenewal Laws – Dodd-Frank, Consumer Protection Act

USCIS Corrects Employment Authorization Renewal Receipt Notices – General Immigration

The Role Of The Unclean Hands Doctrine In Disputes – Shareholders