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Can your 18 year old son be charged with a criminal offence for having consensual sex with his 15 year old girlfriend?

Surveys seem to suggest that the average age that teenagers are likely to partake in sexual exploration and sexual intercourse is around the age of 16. This is often with a long-term partner and mostly with someone of similar age. If 16 is the average age, it follows that a significant number of teenagers are having sexual intercourse under the age of 16 years. This means that many of our teenagers could be charged with sexual offences in terms of the law in NSW as it now stands.

What does the law say?

Sec 66C(3) of the Crimes Act NSW states that any person who has sexual intercourse with another person aged between 14 and 16 is liable to imprisonment of 10 years. This is also referred to as “statutory rape” in some circles.

Consent is not a defense, nor a mitigating factor in terms of the law. The law deems teenagers under 16 years of age unable to give informed consent. It suggests that persons under the age of 16 years old are not mature enough to consent to a sexual relationship. In a recent decision an 18 year old boy was sentenced to prison for 3 years and 6 months after being convicted under sec 66C(3) of the Act. His girlfriend was 15 at the time that they had consensual sex. As a result of the conviction, he is now registered as a sexual offender. Is this just?

Should the law be our moral judge?

This is a very difficult issue and, of course, the law must protect children from being sexually exploited, or manipulated into acts that they are not emotionally or intellectually ready for. This is particularly true if there is an emotional or physical power imbalance. The question is however whether it is right for the law to criminalise and punish normal consensual sexual behavior between adolescents simply because one of them is under the age of 16?

Is it right for the law to determine the “line” at which age a person reaches such maturity as to consent to sexual intercourse? The reality seems to suggest that sexual exploration may start before this 16 year old “consent-line”. Maybe it is time for the law in NSW to follow legislation in other jurisdictions, like Victoria and WA, where the law offers a defence if the age difference between the parties is less than a specified threshold and the proven facts support a finding of consensual sex.

In practice the courts in NSW give some recognition for the injustice that can result from section 66 of the Crimes Act. Six percent of offenders who pleaded guilty in the Local Court had their cases dismissed without a conviction being recorded. This unfortunately provides no guarantee that your child won’t end up in prison or on the sex offender’s register.

Should the law be amended?

Is it time for the legislature in NSW to consider amending the law to provide for a defence that reflects the reality that teenagers are engaging in consensual sexual intercourse? Of course, the court will need to evaluate the circumstances and test whether there was any coercion, or an imbalance in developmental, emotional or intellectual abilities between the parties. This subjective approach will certainly present its own problems, but it will also address the injustice that may occur with the law as it stands today.

Seek legal advice

If your teenager stands accused of a sexual offence under section 66 of the Crimes Act, seek legal advice immediately. The consequences of a conviction can have a devastating effect on the rest of his life. As the law stands today teenage sex is still a criminal offence.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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