Age of consent laws are designed to protect children and young people from sexual exploitation and abuse.Such laws effectively determine that children and young people below the age of consent do not have the emotional maturity to consent to sexual activities.
The 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, and in Western Australia not more than 3 years older, than the person against whom the offence is alleged to have been committed.Appropriate sexual exploration is when there is mutual agreement between same- or similar-aged peers, it is non-coercive and all participants have the control to participate, continue or stop the behaviour (Barbaree & Marshall, 2006).The state jurisdictions that provide a legal defence when the sexual interaction is between two young people close in age (Western Australia, Tasmania, Victoria and the Australian Capital Territory) are attempting to find a balance that protects children and young people from adult sexual exploitation in a way that does not criminalise them for having sexual relationships with their peers.Although the legal age of consent throughout Australia is either 16 or 17 years of age, legislation in New South Wales, Victoria, Western Australia, South Australia and the Northern Territory makes it an offence for a person in a supervisory role to sexually engage with a person under their special care who is aged 16 or 17 years.
A person in a supervisory role providing "special care" may include: a teacher, foster parent, religious official or spiritual leader, a medical practitioner, an employer of the child or a custodial official.
If you require assistance or would like to talk to a trained professional about the issues described in this paper, please call Kids Helpline on 1800 55 1800 or Lifeline on 13 11 14.
If you believe a child is in immediate danger call Police on 000. Information is current up to the date of publication.
Indicators of inequality include size and weight differences and differences in intellectual development.
Indicators of power differentials are more subtle and they are often established prior to sexual interactions; for example, a strength differential may have been established in earlier wrestling, fighting or play (Ryan, 1997).
However, when both parties are close in age, identifying whether the sexual activity is abusive is more complex.