The age of consent refers to the age at which a person is deemed legally competent to agree to sexual activity with another person. Therefore, anyone under this age cannot consent to sexual activity.
Consent is defined as free and voluntary agreement to sexual activity at the time of the activity.
It is illegal to engage in sexual activity with a person under the prescribed age, even if they supposedly ‘agree’ to it.
The law has been designed to protect children and young people from sexual exploitation, as they are deemed to not have the maturity or decision-making capability to participate in sexual activity.
In Australia, the age of consent laws vary by state and territory, but the age of consent is generally set at 16 or 17 years old. An important aspect related to the age of consent in some Australian jurisdictions is the “2-year rule” or close-in-age exemption. This rule is designed to prevent the criminalization of sexual relationships between young people who are close in age, particularly in situations where one participant is below the age of consent and the other is just above it.
Age of Consent by State and Territory
- Australian Capital Territory (ACT): The age of consent is 16 years for all.
- New South Wales (NSW): The age of consent is 16 years for all.
- Northern Territory (NT): The age of consent is 16 years for all.
- Queensland (QLD): The age of consent is 16 years for all sexual activities except anal sex, for which it is 18 years.
- South Australia (SA): The age of consent is 17 years for all.
- Tasmania (TAS): The age of consent is 17 years for all.
- Victoria (VIC): The age of consent is 16 years for all.
- Western Australia (WA): The age of consent is 16 years for all.
The 2-Year Rule (Close-in-Age Exemption)
- Purpose: The rule is meant to recognize that teenagers close in age might engage in consensual sexual activities without one of them being unjustly labelled as a criminal.
- Application: The specific details of the rule can vary between states and territories that recognize it. Generally, it allows for a legal defence if the age difference between the consenting parties is no more than two years. This rule typically applies to cases where one of the individuals is below the statutory age of consent but above another lower age limit (often 14 or 15 years old).
Importance
The 2-year rule acknowledges the complexity of teenage relationships and sexual development. It seeks to balance the protection of young people from exploitation and abuse with the reality that young people close in age might engage in mutual, consensual sexual activities. The rule aims to avoid criminalizing or penalizing adolescents in such relationships, recognizing the minimal age difference as a mitigating factor.