The Legal Age of Consent in Australia

1. The reasons to select the article and found legal issue

The article reported

2. Brief content of the article

The 26-year-old accused went to Sydney last August with a student visa in order to develop his further study at the University of Newcastle. During that period, he met a 12-year-old girl at a local mosque, however, he did not concern that she was merely 12-years-old. Then, the accused and the girl got married in an Islamic wedding ceremony. After celebrating the underage marriage, they moved to a home located in Sydney's south-west. To enroll his wife at a school near their home and ensure his responsibility for taking care of the young girl, the 26-year- old man went to a Sydney Centrelink office and asked for how to become a guardian of his wife, who is a 12-year-old girl. In addressing his question, one of the employees suggests that he should go to the Department of Family and Community Services for the application of guardianship. Afterwards, he submitted the relevant documents to this department, however, his requests were denied. More seriously, a government worker reported this application to the NSW police. Few days later, child abuse squad detectives arrested and took this man to Auburn Police Station by alleging that he had sexual intercourse with the 12- year-old girl 25 times from January 1 to February 4. Peter Yeomans, Commander of the Child Abuse Squad, commented that it was difficult to think these serious crimes could happen to a child at "an obviously very tender age" because the girl did not obtain the age of consent prior to her marriage. He supplemented that even if the religion and culture of the accused is taken out, the factual issue is a sexual abuse of a 12-year-old-girl. This Inspector asserted that the husband must be responsible for numerous counts of sexual assault though the wedding is influenced by culture, ceremony or anything else. In accordance with Yeomans, the Family and Community Services Minister, Pru Goward recognized “Whatever the cultural practice, whatever the religious practice, there is no law in Australia above Australian law,". When accused, the man himself was shocked owing to claiming that there was nothing wrong in applying for guardianship as well as maintaining a sexual relationship with the girl who was his wife. At Burwood Local Court, the accused sat silently and participated into the first hearings with the assistance of an Arabic interpreter. During the judicial proceeding, the magistrate Christopher Longley formally refused the application of bail. Nonetheless, the accused's lawyer claimed that his client expected to apply for bail in the next hearings (Wednesday, February 12). In the meantime, his young wife received the protection and supervision of Family and Community Services where she will stay until a permanent home is sought for her. Goward said that underage girls have the right to a carefree childhood without the sort of abuse in Australia. Nonetheless, she acknowledged a fact that there was a considerable quantity of illegal and unregistered marriages relating to girls below the age of consent in NSW mainly in the west of Sydney and the Blue Mountains.

3. Analysis about legal issues of the age of consent in Australia

1. The definition and purpose of designating age of consent under Australian legal system

Pursuant to criminal laws in Australia, the age of consent is defined that the proper age from which a person possesses legal capacity to provide informed consent for sexual activities with another person. Under Australian jurisdictions, in the event of having sexual behaviors toward a person determined under the age of consent, an adult will be accused of child sexual abuse. The purpose of the granting of the age of consent in Australia is to ensure the protection of children and immature people against harms of sexual activity. Duff states that there were two primary harms, which need preventing to protect the young people, including exploitation (the use of a child for sexual acts), and endangerment (a child is forced to the dangers of sexual interaction prior to its maturity). An undeniable truth is that children and juvenile under the age of consent do not have enough sexual awareness and the emotional maturity to give consent to these acts in the same manner as adolescents. Therefore, regarding to sexual assaults responsibilities in each Australian state and territory, the age of consent plays a decisive role to determine whether a person commit child sexual assault or adult sexual assault. Eade points out that the crucial distinction between such offences is the criteria of determination .Particularly, determining adult sexual assault is entirely dependent on whether there is an existence of sexual consent of victims or not, while child sexual assault is based on legal requirements about age of consent instead of the issues of consent. In line with Eade, Barbaree & Marshall explain that a child does not have the psychological and physically capacity to provide consent in conformity with law despite being willing to conduct sexual acts. This mean that the consent is irrelevant and all sexual intercourses between an adult and an immature person below the age of consent are considered as criminal offences in Australia. Under Australian law, the “age of consent” is referred in two provisions:

• First, according to Marriage Act 1961 (Cth), section 11, the age from which a person has right to consent for getting marriage without parental acceptance (18 years in all Australian jurisdictions)
• Second, the age from which a person are capable of consent to conducting sexual intercourse with another person under Criminal Acts of Australian jurisdictions

2. The legal age of consent under Australia jurisdictions

Although state and territory jurisdictions repeatedly attempt to achieve uniformity, considerable inconsistencies and variations are found in in the legal age for consensual sex in Australia. Specifically, in Tasmania and South Australia, Criminal Acts recognize that the age of consent for sexual interactions is 17 years old. Meanwhile, 16 years old is considered as the formal age of consent relating to child sexual assault offences in the Australian Capital Territory, New South Wales, Northern Territory, Victoria and Western Australia. Different from other states, Queensland is the only state drawing an obvious distinction between different types of sexual behaviors and the age of consent. To explain more fully, anal sex acts (described as sodomy in Criminal Code Act 1989) is legal from 18 years old, whereas the age of consent toward all other sexual interactions (determined as carnal knowledge) is 16 years old regardless of whether the sexual intercourse is heterosexual or homosexual. Currently, the Criminal Code (Cth) acknowledges that the age of consent is 16; however; it is only applied for the criminal engaging in sexual interactions with a child outside Australia. In fact, the Model Criminal Code does not impose uniformity and specify a particular age of consent in Australia. Notwithstanding this, the officers committees (Australian and NSW law reform commission) have recently recommended a general age of consent among jurisdictions and uniform within each state’s criminal law for male and female or same sex interactions. They state that 16 years old may be set without any distinction regarding to gender, sexuality and other aspects. Under Australian state jurisdictions, a range of offences is provided relating to sexual activities conducted with a person below the age of consent, including sexual intercourse; forcing to have sexual intercourse; indecent acts; procuring a child to engage in unlawful sexual activities; and abducting a child for the purpose of conducting illegal sexual activities. Typically, sexual assaults and abuse offences against the immature people are generally expressed and classified in respect of the victim’s age. Particularly, under Australian criminal laws, there are offences against young children (under 10, 12 or 13 year-old people) and offences against older children (people below the age of 16 and 17 years old).The objective of this classification is to reflect the seriousness of these offences against the immature people. Therefore, the penalties of offences against the younger children are certainly heavier than those against the older. For instance, in NSW, there are obvious differences in punishments attached to these offences such as where the child is below the age of 10 years (25 years imprisonment); between 10 and 14 years old (16 years imprisonment); and between 14 and 16 years old (10 years imprisonment). In some jurisdictions, consent by a person who is under the age of consent to sexual activity is excluded from operating as a defence to sexual offence charges, regardless of any similarity in age between the victim and the accused.[66] However, many jurisdictions recognise that consent may play a role in such situations, and consequently there are a range of statutory formulations involving consensual sexual activity between young people under the age of consent but similar in age.[67]For example, in Victoria, consent may be a defence to the offence of sexual penetration or an indecent act where the victim is aged 12 years and over and the accused is not more than two years older than the victim.[68]In South Australia similarity in age is recognised as a defence where the victim is over the age of 16 years and the accused is under the age of 17 years.[69] In Tasmania, consent is a defence, except in relation to anal sexual intercourse, where the victim is aged 15 years and over and the defendant is not more than five years older, or where the victim is aged 12 years or over and the defendant is not more than three years older.[70] If a person is accused of engaging in sexual behaviour with someone under the legal age, there are various statutory defences available, which are outlined in legislation. While legislation varies in each state and territory, in general two types of defences are available (Cameron, 2007). The first type relates to whether the accused believed on reasonable grounds that the person with whom they engaged in sexual behaviour was above the legal age of consent. All jurisdictions (except New South Wales) have provisions for this defence in legislation; however, several variations exist regarding restrictions on the use of the defence according to the age of the alleged victim. The defence cannot be used if the victim was 10 years or younger at the time of the alleged offence in the Australian Capital Territory, 12 years or younger in Queensland and Victoria, 13 years or younger in Western Australia, and 16 years or younger in South AustraliaThe second statutory defence relates to situations in which the two people are close in age. In Victoria and the Australian Capital Territory, engaging in sexual behaviour under the legal age can be defended if the defendant was not more than 2 years older, in WA no more than 3 years older, than the person against whom the offence is alleged to have been committed. In Tasmania it is a defence if the child is 15 years of age and that the accused person was not more than 5 years older than the child, or if the child is above 12 years of age and the accused person is not more than 3 years older than the child. Details for other states can be found inTable 1.In Victoria and WA there is legal provision for defence if the accused can demonstrate they are lawfully married to the child.

3. Comparison with Vietnamese legal system

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