Personal Injury

Consent is at the heart of many social issues. It is a factor, the presence or absence of which significantly affects the legitimacy of actions taken with a person: searches, medical interventions, the use and disclosure of confidential data, and much more. There is the notion of the age of consent at the heart of the problem of the existence of institutional child sexual abuse and historical child sexual abuse. It is of crucial importance.

What Is Sexual Consent?

We can define consent as a person’s active, free and voluntary assessment of his options. Consent is given by a person to meet the moral requirements for it, and the needs of the law must meet such characteristics:

• Absence of external pressure. No outside force, manipulation, fraud, deception, persuasion, or coercion should occ
• The ability to express informed consent. In other words, the person must be able to describe the fullness of the consent. The person must be
  capable, his mind must be clear, and he must be of the age of consent.
• Informedness. The person must own all the facts he needs to make an informed decision about his consent.

In the case of child sexual abuse, particularly institutional child sexual abuse, the child cannot correctly assess the circumstances in which he finds himself, nor is he capable of expressing informed consent.

In this connection, the legislator has a rather tricky question. He should define the age at which a child does not yet have the right to express his consent to sexual activity and the age at which he already has that right. It is the basis for the existence of the concept of the age of consent.

What is the age of consent?

It’s important not to mistake the age of consent for the age of adulthood and the age of marriage. The age of consent directs to the age at which an individual can lawfully agree to sexual activity.

The law limits one’s ability to have sex if an individual is under the age of consent.

For example, we can talk about institutional child sexual abuse (or historical child sexual abuse) if someone engages in sexual actions with a person under the age of consent, even if that person says he consented to sex.

In many countries, the age of consent varies and is defined differently by the law. At the exact moment, the age of consent in each country is determined based on its historical, social, and economic development, traditions, and established social norms.

Most countries in the world set the age of consent at sixteen. However, there are both much lower and higher numbers than sixteen.

For example, Nepal has the lowest age of consent, at eleven. The Philippines and Angola have 12, and Niger and Japan are set at 13.

Most European countries set the age of consent at 16 to 17. The lowest age in Europe (14) is in Austria, Serbia, Italy, Portugal, and Germany.

The Age of Sexual Consent in Australia

In Australian territorial and state jurisdictions, the legal age of consent for sexual activity varies from 16 to 17 years. For other types of sexual activity, criminal law varies from jurisdiction to jurisdiction in Australia.

New South Wales – 16 years (Crimes Act 1900). Crimes Act 1900 determines the presence of consent if, during sexual activity, a person freely and voluntarily consents to it.

Victoria – 16 years (Crimes Act 1958). Consent means free agreement. There would be a lack of consent if a person engaged in an action because of the following:

• force or fear of power,
• fear of harm of any kind,
• being illegally detained or
• while asleep or
• unconscious or
• alcohol or drugs when the person cannot consent to the action or withdraw his consent.

Queensland – 16 years (Criminal Code Act 1899). Consent is consent, voluntarily and freely, given by a person with the cognitive capacity to consent. The terms “freely” and “voluntarily” can only be met if no force, threats, or intimidation exist. In addition, there should be no person’s authority or false and fraudulent statements about the nature or purpose of the act.

Western Australia – 16 years (Criminal Code Act Compilation Act 1913). Here, consent means consent given freely and voluntarily. Consent is not free and voluntary if it is obtained by force, threat, intimidation, deception, or fraud.

South Australia – 17 years (Criminal Law Consolidation Act 1935). a person consents to sexual activity if he voluntarily and freely consents to sexual activity.

Tasmania – 17 years (Criminal Code Act 1924). Consent means a free agreement, which is excluded if:

• an individual does not say or do anything to convey consent
• or was engaged because of force or fear of it,
• because of any threat against him or another person,
• because of the character or position of the other person,
• or because of fraud.

In addition, consent is absent if the person is mistaken about the nature or purpose of the act or is asleep, unconscious, under the influence of alcohol or drugs, and unable to form a rational opinion on the matter on which consent
is required.

Australian Capital Territory – 16 years (Crimes Act 1900). Here, consent to sexual intercourse means informed, free and voluntary consent to sexual intercourse submitted by saying or doing something.

Northern Territory – 16 years (Criminal Code Act 1983). Under the Criminal Code Act 1983, consent means free and voluntary agreement.

Sexual Consent in Australia

As you may have noticed, the age of consent to sexual activity is crucial in qualifying sexual acts as a crime. The legislator should strive to harmonize his policy on setting the age of consent limits with public opinion and the well-established traditions of the society. The law guarantees the rights, safety, and personal integrity of children who cannot prepare their psyches for the consequences of sexual abuse.

If you or someone you know would like to talk to one of our historical sexual abuse specialists, for free and in confidence, about your legal options, please feel free to either complete the form below with the best way and the best time to contact you, or you can call us on 02 9283 5599.