Introduction

The defence of similar age is a crucial legal concept in New South Wales, particularly in cases involving sexual offences. This defence is designed to protect young individuals from being criminalised for consensual sexual activity when the age difference between the parties is minimal. Understanding this defence is essential for anyone navigating the complexities of sexual offence charges in NSW.

This guide provides a comprehensive overview of the defence of similar age, including its application, legal requirements, and the rationale behind its existence. By exploring these aspects, readers will gain clarity on how this defence operates within the framework of the Crimes Act 1900 (NSW) and its implications for both the accused and the alleged victim. If you or someone you know is facing charges related to sexual offences, it is imperative to seek legal advice from a qualified criminal defence lawyer to understand your rights and options.

Overview of the Defence of Similar Age

What Offences Qualify for the Defence

The defence of similar age is a legal provision in New South Wales that applies when the alleged victim and the accused are close in age. It is designed to prevent the criminalisation of consensual sexual activity between young people who are similarly aged. Under the Crimes Act 1900 (NSW), this defence covers the following offences:

• Sexual intercourse with a child aged between 14 and 16 years (section 66C(3))
• Sexual touching of a child aged between 10 and 16 years (section 66DB)
• Sexual acts with a child aged between 10 and 16 years (section 66DD)
• Sexual intercourse with a young person under special care, aged between 16 and 18 years (section 73)
• Sexual touching of a young person under special care, aged between 16 and 18 years (section 73A)

This defence is only available where consent is not an element of the offence, meaning its availability depends solely on the age criteria rather than on proving consent.

How the Age Difference Requirement Works

Because consent is not an element of these offences, the defence hinges entirely on meeting specific age requirements:

• Age of the alleged victim: Must be at least 14 years old at the time of the offence.
• Age difference: Must not exceed two years between the alleged victim and the accused.

The prosecution bears the burden of proving beyond a reasonable doubt that either:

1. The alleged victim was under 14 years of age, or
2. The age difference exceeds two years.

If the prosecution cannot meet this burden, the defence of similar age applies and the accused will not be convicted of the offence.

Legal Requirements for Using the Defence

Age Criteria & Maximum Age Gap

In New South Wales, the defence of similar age applies where the alleged victim is at least 14 years old and the age difference between the victim and the accused does not exceed two years. It is available only for certain sexual offences.

These offences include:

• Sexual intercourse with a child aged 14 to 16 years under Section 66C(3) of the Crimes Act 1900 (NSW)
• Sexual touching of a child aged 10 to 16 years under Section 66DB
• Sexual acts with a child aged 10 to 16 years under Section 66DD
• Sexual intercourse with a young person under special care aged 16 to 18 years under Section 73
• Sexual touching of a young person under special care aged 16 to 18 years under Section 73A

These criteria ensure that the defence is confined to cases where both parties are close in age and the alleged victim meets the minimum age threshold.

Onus of Proof in Criminal Proceedings

The prosecution bears the burden of proving beyond a reasonable doubt that the conditions for the defence of similar age are not met. Specifically, they must demonstrate that:

• The alleged victim was under 14 years of age, or
• The age difference between the victim and the accused exceeds two years.

The accused need only raise the defence as an issue in their case; they do not have to prove it. Once the defence is raised, the prosecution must provide evidence to refute it. This legal burden ensures the accused is not unfairly criminalised for consensual sexual activity with a similarly aged individual.

Why the Defence of Similar Age Exists

Protection From Unjust Criminalisation

The defence of similar age was introduced to protect teenagers from being criminalised for consensual sexual activity with peers who are close in age. This defence applies when the alleged victim is at least 14 years old, and the age difference between the victim and the accused is no more than two years. In other words:

• The alleged victim is at least 14 years old.
• The age difference between the victim and the accused does not exceed two years.

For example, if a 15-year-old engages in consensual sexual activity with a 16-year-old, the defence of similar age can be raised to prevent unjust prosecution.

Legislative Background & Policy Intent

The defence of similar age was enacted in 2019 under section 80AG of the Crimes Act 1900 (NSW). This legislation was designed to address specific sexual offences, such as:

• Sexual intercourse with a child between the ages of 14 and 16
• Sexual touching
• Sexual acts with a child

The policy intent behind this defence is to ensure that young people engaging in consensual sexual activity with peers of similar age are not unfairly criminalised. Consequently, the prosecution bears the burden of proving beyond reasonable doubt that the alleged victim was under 14 or that the age difference exceeds two years.

This defence reflects a balanced approach to sexual offence laws, aiming both to protect young people and to maintain the integrity of the legal system.

Conclusion

The defence of similar age is a critical legal provision in New South Wales that protects young individuals from being criminalised for consensual sexual activity with peers of a similar age. This defence applies to specific sexual offences under the Crimes Act 1900 (NSW), provided the alleged victim is at least 14 years old and the age difference between the parties does not exceed two years. Understanding this defence is essential for anyone facing sexual offence charges, as it can significantly impact the outcome of their case.

If you or someone you know is facing charges related to sexual offences, it is crucial to seek legal advice from experienced criminal defence lawyers. Daoud Legal, a trusted criminal law firm in Sydney, offers specialised services tailored to your needs. Their expertise in navigating the complexities of sexual offence charges can provide you with the guidance and support necessary to protect your rights and future. Contact Daoud Legal today to discuss your case and explore your legal options.

Frequently Asked Questions