The age of consent
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Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 21/1997 by Rachel Simpson and Honor Figgis
|An age of consent is designed to protect young and innocent children from physical and psychological harm caused by engaging in sexual intercourse before he or she is mature enough to consent to such activity. Consent in this context refers to full, informed consent, where the person is aware of the consequences of giving that consent. There is no objective means of determining at what age the age of consent should be set, since children mature and develop at different rates. The purpose and applicability of such an age of consent is discussed at Part 2.0 - Why have an age of consent?
The age of consent in Australia depends upon which state the person in question is in, whether the person is a male or female, and the nature of the sexual intercourse the person is engaged in. This can lead to a number of inconsistencies both between the states and between males and females. In addition, the Commonwealth Crimes Act 1914 also includes child sexual abuse offences, that rely on an age of consent. These are discussed in Part 3.1. The provisions in the New South Wales Crimes Act 1900 that rely on an age of consent are discussed in detail in Part 3.2. In Part 4 - Comparative position overseas, the age of consent in a number of overseas jurisdictions is included in tabular form to provide an indication of where Australia stands in relation to the ages of consent in the international context.
The debate surrounding the age of consent raises the broader point of the role of the criminal law. Some argue that the function of the criminal law is to preserve public order and decency, but not to intervene in the private lives of citizens or seek to enforce any particular form of behaviour. However, others argue that the criminal law has a responsibility to prevent harm to society stemming from the moral disintegration of society, and the law therefore can intervene in both the private and public lives of individuals to uphold the shared morality of society. This issue is addressed in Part 5.0 - Philosophical/ethical issues.
The age of consent laws can either remain as they are, or be amended so that they become gender-neutral. If this occurs, then there are two options: the age of consent for females can be raised to 18 years, or the age of consent for males can be lowered to 16 years. The latter option is the one most favoured by the Royal Commission, the Queensland parliamentary Criminal Justice Commission and the Model Criminal Code Committee. The primary argument for lowering the age of consent for males is based on a belied that the existing regime is discriminatory because it imposes a higher age of consent for boys engaging in homosexual sex. The primary argument for maintaining the current age of consent for males revolves around a concern to protect young men from psychological and/or physical harm. The arguments for and against a uniform age of consent of 16 years can be found in Parts 6.1 and 6.2.
Also see the 1999 update: The Age of Consent: an update