Age of Consent (NSW)

In New South Wales, a person can legally consent to engaging in sexual activity once they are 16 years of age. Any person who is under the age of 16 years old cannot lawfully consent to sexual activity, from kissing, to sexual touching to sexual intercourse. Any person who engages in sexual activity of any kind, with a person who is under the age of 16 may be guilty of an offence.

How Does the Age of Consent Work in NSW?

As outlined above, the age of consent in NSW is 16 years of age. Engaging in sexual activity with someone under the age of 16 is an offence, even if the person under the age of 16 wants to engage in sexual conduct. This is because a person under the age of 16 cannot legally provide consent. Although this person under the age of 16 may be considered a “willing participant” at the time of the sexual conduct, it does not make the sexual act legal or consensual in a legal aspect.

There is an exception to the above age of consent law in NSW, specifically relating to relationships involving ‘special care’. 

Age of Consent and Persons under Special Care

Pursuant to section 73 of the Crimes Act 1900, it is an offence to sexually touch or engage in sexual intercourse with a person who is between the ages of 16 and 18 years old, if that young person is under ‘special care’.

A young person is deemed to be under the ‘special care’ of another person if that other person is one of the following:

• A parent of grandparent of the young person
• A guardian or authorised carer of the young person
• The spouse of de facto partner of one of the above persons
• Teacher or principal of the young person
• Employee of the school of the young person
• A person with a personal relationship with the young person, from a religious, sporting, musical or other instruction provision
• Custodial officer at the institution where the young person is
• Health care professional of the young person
• A person who works at the residential care or crisis accommodation of the young person

The following acts might constitute a sexual offence which breaches the Age of Consent in NSW:

• A 21 year old engaging in sexual intercourse with a 15 year old
• A teacher sexually touching his 17 year old student
• An 18 year old sexually touching a 14 year old

Possible Defences to the above Age of Consent NSW offence examples:

• Pursuant to section 80AG of the Crimes Act 1900, the defence of ‘similar age’ can be raised where the age difference in question, between the complainant and the accused is less than 2 years, provided the complainant is 14 years of age or older.
• Honest and reasonable mistake of fact

Common Questions about Age of Consent in NSW

Will I receive a criminal conviction?

A conviction and criminal record for this offence is very likely, if you are found guilty of engaging in a sexual act with a person under the age of 16, or a person whom you have special care of. 

In NSW, a Court can impose any of the following penalties for one of the above potential offences:

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for this offence might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover, a conviction for an offence of sexual nature can completely rule out certain career paths such as teaching and a range of government employment options. Sexual offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

What if the person under the age of 16 consented to the sexual act with me?

A person under the age of 16 years old is incapable of providing legal consent to any sexual acts. Consent is not a defence in this circumstance.

What if I believed the other person was over the age of 16 at the time, and was not under my special care?

The defence of ‘honest and reasonable mistake of fact’ may be available to you, however, the mistake must be both honest and reasonable and it is not enough for you to believe someone is over the age of 16 years old if the belief is not reasonable (e.g. the young person in question is visibly very under the age of 16 years old). 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.