In New South Wales, a person who is 16 or older can legally consent to sex with another person who is 16 or over. However, if a young person under 18 is under the ‘special care’ of another person, they cannot legally consent to sex with that person. A person who has sexual contact with someone who is under the age of consent may be charged with a criminal offence. This page outlines the laws around the age of consent in New South Wales and some of the child sex offences that exist in the state.
What is consent?
A person consents to sexual activity when they freely and voluntarily agree to the activity. A person can withdraw their consent to sex at any time.
A person does not consent if they go along with an activity because of force, threats of force, because they have been unlawfully detained, because of coercion or intimidation, because they are asleep or unconscious or if they are so intoxicated by drugs or alcohol that they cannot effectively consent.
Sex without consent is a serious offence regardless of the ages of the people involved.
What is the age of consent?
The age of consent is the age at which a person can legally consent to sex. In New South Wales, the age of consent is 16.
If a young person who is under 16 but over 14 has sexual contact with another person and the other person is subsequently charged with an offence, they have a defence if they were no more than two years older than the young person at the time.
A person who is under 14 cannot validly consent to sex with anyone in New South Wales.
Young people under special care
A person who is aged 16 or 17 cannot validly consent to sex with a person whose special care they are under. This means that it is an offence for a person who has special care of a person under 18 to engage in sexual activity with that person.
A young person is under special care of another person if the other person is:
- their parent, grandparent, guardian or carer;
- the spouse or partner of a parent, grandparent, guardian or carer;
- a teacher, principal or deputy principal;
- performing work at the young person’s school and has the young person 8under their authority;
- a person who has a relationship with the young person through providing religious, sporting, musical or other instruction to them;
- a health professional;
- a custodial officer in an institution where the young person is an inmate;
- carrying out work associated with residential care or crisis accommodation for the young person.
An adult who has sexual intercourse with a young person who is under their special care is guilty of an offence under section 74 of the Crimes Act 1900. This offence is punishable by a maximum penalty of eight years imprisonment if the young person is 16 years old or four years imprisonment if they are 17 years old.
Child sex offences
The Crimes Act also contains a number of offences involving sexual contact between adults and persons who are below the age of consent. Sexual offences against children include sexual intercourse with a child under 16, sexual intercourse with a child under 10, sexual touching of a child under 16, sexual touching of a child under 10 and carrying out a sexual act with a child under 16, or with a child under 10. It is also an offence to maintain an unlawful sexual relationship with a child.
Defences
A person who is charged with an offence relating to sexual contact with a child below the age of consent may rely on a legal defence.
Similar age
As mentioned above, a person has a defence to an sexual offence involving a child below the age of consent if the accused was no more that two years older than the child at the time the act occurred. This is known as the ‘similar age’ defence.
The similar age defence is based on the principle that young people have a developing sexuality which they may explore with other young people. The similar age defence seeks to balance the need to allow young people to engage in consensual relationships with the need to protect children from abuse by older people.
Honest and reasonable mistake defence
A person may rely on the defence of honest and reasonable mistake if they held an honest and reasonable belief that the young person was over the age of 16. Whether such a mistaken belief is reasonable will be assessed based on the circumstances of the case. The court will consider the circumstances in which the accused met the young person, the young person’s appearance and behaviour and any statements they made about their age.
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