In New South Wales, the general age of consent is 16, but this rule has significant exceptions. In NSW, the law stipulates that a person cannot legally consent to sexual activities—such as sexual intercourse, sexual touching, or any sexual act—until they reach a certain age, known as the ‘legal age of consent NSW.’
This means that if someone engages in sexual activity with a child under this age, they can be charged with a sexual offence, regardless of whether the child appeared to consent.
Two notable exceptions are outlined in sections 73 and 73A of the Crimes Act 1900. These sections make it illegal to engage in sexual intercourse with someone under 18 if they are under ‘special care’, and also prohibit sexual touching of a person under special care.
Legal Age of Consent NSW: Sexual Intercourse with a Person Under Special Care
Engaging in sexual intercourse with a person under special care is a criminal offence under *section 73 of the Crimes Act 1900*. The penalties are severe, with a maximum sentence of 4 years in prison if the individual is 17 but under 18 or up to 8 years if the individual is 16 but under 17. This underscores the importance of understanding the legal age of consent NSW.
To convict someone of this offence, the prosecution must prove beyond reasonable doubt that:
- You had sexual intercourse with a young person.
- You knew or were reckless as to whether they were a young person.
- The young person was under your ‘special care.’
‘Sexual intercourse’ includes:
- Penetration of a female’s genitalia, or the anus of any person, by any part of, or object used by, another person.
- The introduction of a penis into another person’s mouth.
- Cunnilingus.
- The continuation of any of these activities.
A ‘young person’ is defined as someone at least 16 but under 18 years old.
Special care situations include:
- Being a step-parent, guardian, authorised carer, or the de facto partner of the young person’s parent, guardian, or authorised carer.
- Being a member of the teaching staff at their school.
- Establishing a personal relationship with the young person through religious, sporting, musical, or other instruction.
- Being a custodial officer at an institution where the young person is an inmate.
- Being a health professional with the young person as your patient.
However, you cannot be found guilty if you married a young person. At KPT Legal, we are here to provide guidance and support if you find yourself facing these serious charges.
Sexual Touching of a Person Under Special Care
Sexual touching of a young person under special care is a serious offence under section 73A of the Crimes Act 1900. The penalties are significant, with a maximum sentence of 2 years in prison if the young person is 17 but under 18, and up to 4 years if the young person is 16 but under 17.
To secure a conviction for this offence, the prosecution must prove beyond a reasonable doubt that:
- You sexually touched a young person, or incited a young person to touch themselves sexually, or incited a third person to touch a young person sexually, or incited a young person to touch a third person sexually.
- 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.
Factors that determine whether touching is sexual include:
- Touching of the genitals, or the breasts of a female, or the breasts of someone who identifies as female.
- Whether the act was intended for sexual arousal or gratification.
- Any other aspect of the touching or the surrounding circumstances that make it sexual.
It’s important to note that touching is not considered sexual if it was performed for a genuine medical or hygienic purpose.
A ‘young person’ is classified as someone between 16 and 17. The definition of ‘special care’ aligns with section 73, and marriage to a young person exempts you from being found guilty. KPT Legal provides expert guidance and support for individuals facing serious charges, helping you comprehend your rights and options.
Legal Defences to Charges Relating to Sexual Offences
Under section 80AG of the Crimes Act, there is a specific statutory defence for certain charges if you and the complainant were of ‘similar age.’ This means the complainant was at least 14 years old, and you were no more than 2 years older. This defence applies to the following charges:
- Sexual intercourse with a child between 10 and 16 years old, under section 66C of the Crimes Act
- Sexual touching of a child between 10 and 16 years old, under section 66DB
- Sexual act with a child between 10 and 16 years old, under section 66DD
- Sexual intercourse with a child under special care, under section 73
- Sexual touching of a child under special care, under section 73A
In addition to this statutory defence, general legal defences such as duress, self-defence, and necessity also apply.
If you can present evidence supporting either the statutory defence or a general defence, the prosecution’s burden shifts to disprove this defence beyond a reasonable doubt.
You are entitled to an acquittal if the prosecution cannot disprove your defence. At KPT Legal, we are here to help you understand and effectively use these defences related to the legal age of consent NSW to protect your rights and achieve the best possible outcome in your case.
Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice beforetaking any course of action.
