As recent changes to consent legislation seek to protect the rights of victims of sexual assault, there is a continued need for community awareness of consent and consent legislation in NSW. The NSW age of consent refers to the age at which a young person can legally consent to a sexual act with another individual. These laws aim to protect young people, as one of the most vulnerable groups within our legal system, whilst simultaneously enabling healthy sexual awareness and development.
What does ‘age of consent’ mean?
A person cannot consent to sexual acts if they are under the legal age of consent.
The age of consent is the age at which a person is considered to be legally competent to consent to sexual acts. If an individual is under the age of consent, they cannot legally agree to sexual activity, and any person they engage with sexually has committed a criminal offence and can be charged with sexual assault.
What is the age of consent in NSW?
In NSW, the age of sexual consent is 16 years old. This means any individual aged 16 years or older can legally consent to sexual intercourse with another person also aged 16 years or older.
However, even if a young person is aged 16 years or older, they cannot legally consent to sexual intercourse with a ‘special carer’ whilst they are under the age of 18.
Persons under special care
Even if an individual is over the age of consent, it is a criminal offence to have sexual intercourse with a young person between the age of 16 and 18 under special care, in accordance with section 73 of the Crimes Act 1900 (NSW).
NSW legislation outlines that the victim is under the special care of the offender if they:
- Are the step-parent, guardian or foster parent of the victim
- Are a school teacher, and the victim is a pupil of the offender
- Have established a personal relationship with the victim in connection with the provisions of religious, sporting, musical or other instruction to the victim
- Are a health professional, and the victim is a patient of the health professional.
Individuals who have had sexual intercourse with minors under their special care that are over the age of consent are liable to 8 years imprisonment if the victim is under 17 years old and liable to 4 years imprisonment if the victim is aged 17-18.
Sending sexual photos over the phone or online
In Australia, the legislation prohibits “asking for, accessing, possessing, creating or sharing sexualised images of children and young people under the age of 18.” These laws apply to children and young persons who create or share sexually explicit images, even if all parties consent.
If an individual shares a photo or video of a person doing a sexual act or showing their genital region without their consent, they can be found charged with a criminal offence.
Legal meaning of consent
As defined in section 61HI of the Crimes Act 1900 (NSW), a person “consents” to sexual activity if, at the time of the sexual activity, the person freely and voluntarily agrees to the sexual activity. There must be an ongoing and mutual communication of this consent each time people partake in any sexual activity.
The 2022 amendment to consent legislation emphasises the importance of communicative and affirmative consent, that consent must be communicated by words or actions, and that there is a responsibility to take steps to ensure the other person is consenting.
‘Free and Voluntary agreement’
NSW legislation asserts that consent must be obtained through a ‘free and voluntary agreement’. This means that for someone to give consent under the law, it can only be obtained in a matter free of coercion, threats, or means other than voluntarily.
Affirmative Consent
The NSW affirmative consent model legally enforces that an individual cannot be considered to have given consent unless they say or do something to indicate that consent has been given. This means silence or a lack of resistance cannot be used to suggest someone has consented to a sexual act.
When can I not consent?
Other than saying ‘no’, the law considers that an individual has not consented in any of the following circumstances;
- There was an absence of the person to communicate consent. ‘Freezing’/ not saying or doing anything to communicate consent is not considered consent under the new legislation.
- They were asleep or unconscious;
- They agreed because of threats or force;
- They were unlawfully detained;
- They did not have the cognitive capacity to consent or were so drug affected that they could not consent;
- They consented because of a mistaken belief about the identity of the other person;
- They consented because of a mistaken belief that they were married to the other person;
- They consented because of a mistaken belief that the act is for medical or hygienic purposes or another mistaken belief about the nature of the act.
If a person is taken to partake in sexual acts with another person in any of these circumstances, they have not legally consented, and their sexual partner has committed a criminal offence.
What requires consent?
Consent must be given before an individual partakes in any kind of sexual activity with or in front of another person.
This includes sexual touching, exposing genitals or masturbating, as well as oral sex or penetrative sex. Individuals under the age of 16 are unable to consent to any of these sexual activities under NSW law.
Sexual Offences/ Consent Laws
If an individual partakes in sexual activity with someone under the legal age of consent, they have committed a criminal offence. NSW legislation outlines the various crimes relating to sexual acts without consent and possible punishments.
Sexual Intercourse with a Young Person
Section 66 of the Crimes Act 1900 states it is a criminal offence to have sexual intercourse with a young person under the age of 16 and can be found guilty of sexual assault. The maximum penalty to which the offender is liable depends on the age of the victim.
- If the child is aged 14-16, the maximum penalty is 10 years imprisonment
- If the child is aged 10-14, the maximum penalty is 16 years imprisonment
- If the child is under 10, the maximum penalty is life imprisonment
Sexual Touching
Under section 66, if an individual is found guilty of sexually touching a child aged 10-16 or procured another person to do so is liable to a maximum penalty of 10 years imprisonment.
If the child is under the age of 10, the offender is liable for up to 16 years of imprisonment.
Sexual Act
Outlined under section 66, a person who intentionally carries out a sexual act towards or with a child aged 10-16 is liable to a maximum term of 2 years.
If that child is under 10, the accused is liable to 7 years imprisonment.
Key Takeaways
- The age of sexual consent in NSW is 16, aiming to protect young individuals while allowing for healthy sexual development.
- Sexual relationships with 'special carers' are criminalized for those aged 16 to 18, highlighting the importance of a power imbalance in consent laws
- NSW legislation prohibits the creation, sharing, or possession of sexual images of anyone under 18, emphasizing child and youth protection online.
- Recent amendments to consent laws stress communicative and affirmative consent, requiring active and voluntary agreement for sexual activities.
- The law outlines specific circumstances where consent cannot be given, including situations involving threats, unconsciousness, or cognitive incapacity, ensuring clarity around the legal definition of consent.
Similar Age Defence
If an individual has been accused of having sexual intercourse with an individual under the age of 16, the defence may use the ‘similar age defence’ where the alleged victim was aged 14 years or older and the age difference between the two parties was less than 2 years.
It should be stressed, however, that young persons under the age of 14 are unable to provide consent.
Written By
James Janke
James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia
