Ages of consent in Australia and Oceania

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Main article: Age of consent
Age of consent laws Worldwide
Age of consent laws Worldwide

The ages of consent for sexual activity vary by jurisdiction across Australia and Oceania. The specific activity engaged in or the gender of its participants can also be affected by the law. Below is a discussion of the various laws dealing with this subject. The highlighted age refers to an age at or above which an individual can engage in unfettered sexual relations with another who is also at or above that age. Close in age exceptions may exist and are noted when relevant. Other variables, for example are same-sex sexual conduct with a higher age of consent, such as Vanuatu and a higher age of consent and no defences in legislation for anal sex in Queensland (defined as sodomy, regardless) and no defence of anal sex in Tasmania.

Contents

[edit] American Samoa

It is an offence in American Samoa to engage in sexual intercourse with a person under the age of 16[citation needed].

[edit] Australia

Australia is a Federation of States and Territories. Australia's Constitution protects and retains certain residual powers for the States and so the Australian Federal Government (the Commonwealth) has constitutional limitations on what issues it can legislate. This means that each State has its own laws regarding age of consent. However, it is worth mentioning that a 1997 Federal Government and the United Nations Human Rights Committee ruling resulted in States repealing rules which differentiated between homosexual and heterosexual people on age of consent issues. This power of the Commonwealth arises from the international affairs power under Australia's constitution.

[edit] Federal laws (legislation that applies to all Australian citizens)

It is an offence for an Australian citizen, resident or body corporate[1] while outside of Australia to have sexual intercourse with a child under the age of 16 [2] or to induce a child under the age of 16 to have sexual intercourse[3] , or be somehow involved in a similar sexual act[4].

Sex between consenting adults (18 or over) in private, regardless of gender or sexual orientation can not be outlawed under section 4 of the Human Rights (Sexual Conduct) Act 1994.

[edit] Australian Capital Territory

It is an offence in the Australian Capital Territory to engage in sexual intercourse with a person under the age of 16 (Crimes Act 1900, s55(2)). However it is a defence if the younger party was aged 10 years or older and the offender was not more than 2 years older than the younger party. (s55(3b))

[edit] New South Wales

It is an offence in New South Wales to engage in sexual intercourse with a person under the age of 16 (Crimes Act 1900, s66C) or attempt such an offence (s66d). Further it is an offence to engage in sexual intercourse with a person under the age of 18 if that person is under the care of the offender (s73) (guardian, teacher etc).

[edit] Norfolk Island

It is an offence in Norfolk Island for a person to engage in sexual intercourse or an act of indecency with a person under the age of 16 (Criminal Law Amendment Act 1993 {sections 93, 93E(2) and 93K(2)}).

[edit] Northern Territory

It is an offence in the Northern Territory to engage in sexual intercourse with a person under the age of 16 {s127} or attempt such an offence {s131}. Further it is an offence to engage in sexual intercourse with a person under the age of 18 if that person is under the care of the offender {s128} (guardian, teacher etc).

[edit] Queensland

It is an offence in Queensland to have carnal knowledge with a person under the age of 16 (Crimes Act 1899, s215). Note that in Queensland "carnal knowledge" does not include "sodomy". Sodomy (or in this case, anal sex) is not permitted with any person under the age of 18, regardless of gender or what position is taken by which individual ([1] and {s208}).

[edit] South Australia

It is an offence in South Australia to have sexual intercourse with a person under the age of 17 (Criminal Law Consolidation Act 1935, s49(3)). However it is a defence if both parties were 16 at the time of the offence {s49(4)} or if both parties are married to one another {s49(8)}. Further it is an offence to engage in sexual intercourse with a person under the age of 18 if that person is under the care of the offender {s49(5)} (guardian, teacher etc).

[edit] Tasmania

It is an offence in Tasmania to have sexual intercourse with a person under the age of 17 (Criminal Code Act 1924, s13-124). However it is a defence if no anal sex occurred and the younger person was of or above 12 years and the older was not more than 3 years their senior or, if no anal sex occurred and the younger person was of or above 15 years and the older was not more than 5 years their senior ([2] and s13-124(3)).

[edit] Victoria

It is an offence in Victoria to sexually penetrate a person under the age of 16 (Crimes Act 1958, s45(1)). However it is a defence if the younger party was aged 10 years or older and the offender was not more than 2 years older than the younger party (s45(4)(b)). Further it is an offence for a person to sexually penetrate a person under the age of 18 if that person is under the care of the offender (s48) (guardian, teacher etc).

[edit] Western Australia

It is an offence in Western Australia to sexually penetrate a person under the age of 16 (Criminal Code, s321). Further it is an offence to sexually penetrate a person under the age of 18 if that person is under the care of the offender (s322) (guardian, teacher etc).

[edit] Cook Islands

It is an offence in the Cook Islands to have sexual intercourse with a girl under the age of 16 (Crimes Act (1969), ss146 and 147). If the girl consented and is aged 12 or more, it is a defence if the offender is younger than the girl, or if he is under 21 of age and "had reasonable cause to believe, and did believe" that the girl was aged 16 or older. (These defenses do not apply if consent was obtained fraudulently.)

There is no minimum age of consent for boys, although sodomy is illegal at any age (s155) and it is illegal for men aged 21 or more to commit indecent acts on boys under the age of 15 (s153). Similarly, it is illegal for women aged 21 or more to commit indecent acts on girls under the age of 15 (s152).

[edit] Fiji

It is an offence in Fiji to have carnal knowledge of a girl under the age of 16 (Penal Code of Fiji (1978), ss155 and 156). If the girl is aged 13 or more, it is a defence if the offender "had reasonable cause to believe and did in fact believe" that the girl was aged 16 or older.

Recent developments

On the 11 July 2006 the Fijian High Court Commission ruled, "No more arrests for private consensual same-sex sexual conduct". From 1997 the constitution of Fiji forbade discrimination based on "sexual orientation". From the 11 July 2006 sections relating to sodomy of the Penal Code have been invalidated but have not been repealed from the Penal Code statutes (Provisions).[5]

Prior to the High Commission's ruling the following offences were in force:

Unnatural offences
175. Any person who-
(a) has carnal knowledge of any person against the order of nature; or
(b) has carnal knowledge of an animal; or
(c) permits a male person to have carnal knowledge of him or her against the order of nature,
is guilty of a felony, and is liable to imprisonment for fourteen years, with or without corporal punishment.
Attempts to commit unnatural offences and indecent assaults
176. Any person who attempts to commit any of the offences specified in section 175, or who is guilty of any assault with intent to commit the same, or of any indecent assault upon any male person, is guilty of a felony, and is liable to imprisonment for seven years, with or without corporal punishment.
Indecent practices between males
177. Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony, and is liable to imprisonment for five years, with or without corporal punishment. -- Fijian Penal Code

[edit] New Zealand

It is an offence in New Zealand to have a sexual connection with a person under the age of 16: NZ Crimes Act (1961) Part 7, section 134. It is a defence if due diligence had been undertaken by the defendant to ascertain the victim's age, had reasonable grounds to believe the victim was aged 16 or over and consent was given {Part 7 Section 134A}. Further it is an offence for a person to have a sexual connection with a person under the age of 18 if the defendant is in a guardianship role (parent, step-parent, foster parent, guardian, uncle, aunt or other members of extended family, whanau or other power or authority or responsibility for care or upbringing Part 7, sections 131 & 131A

New Zealand has had a uniform and equal age of consent for straight, lesbian and gay sex alike since the passage of the Homosexual Law Reform Act in 1986.

Although age of consent laws in New Zealand (as with most other western countries) are currently severe, consensual relationships between adults and young teens are usually not prosecuted unless the parent or child complain about it. Similarly, although a teen 14 years or older can be prosecuted for a consensual relationship with a teen under 16 (both parties if both are 14 years or older), this is extremely rare. Even with a complaint, it is still up to police discretion and if the age difference is small it is rarely prosecuted, with family group conferences being the more likely option.[6] There was an attempt to formalise this under law in 2004, however this was abandoned after a public outcry. It is interesting to note that before 2005, there was not a law in New Zealand prohibiting any form of sexual relationship between adult women and male minors.[7]

[edit] Papua New Guinea

It is an offence in Papua New Guinea to have unlawful carnal knowledge of a girl under the age of 16: sections 213 and 216 of the Criminal Code (1974) of Papua New Guinea. If the victim is aged 12 or more, it is a defence if the defendant "believed, on reasonable grounds" that the girl was aged 16 or older. It is a crime for any person to indecently deal with a boy under the age of 14 (section 211), and boys under the age of 17 are not deemed able to consent to acts by another male that, but for their consent, would be indecent assaults (section 243). Also having or allowing carnal knowledge "against the order of nature" is illegal at any age, as are acts of "gross indecency" between males (sections 210 and 212).

[edit] Pitcairn Island

The current age of consent appears to be 16, as a 1999 case involved a New Zealand tourist convicted of "unlawful carnal knowledge" of a girl of 15. However the Pitcairn sexual assault trial of 2004 involved mostly charges of rape or sexual assault, not "underage sex" (and some "gross indecency with a child under 14" charges), although it was claimed during the trial that (presumably consensual) "underage sex" with girls from the age of 12 was normal on Pitcairn.

[edit] Vanuatu

It is an offence in Vanuatu for a man to have sexual intercourse with a girl under the age of 15 and for all homosexual relations under the age of 18: Criminal Procedure Code of Vanuatu {s97}{s98}{s99}.

[edit] Western Samoa

It is an offence to have sexual intercourse with a girl under the age of 16: sections 51 and 53 of Samoa's Crimes Ordinance (1961). If the girl consented and is aged 12 or more, it is a defence if the defendant was younger than the girl, or if he was under 21 and "had reasonable cause to believe, and did believe" that the girl was aged 16 or older. These defenses do not apply if consent was obtained fraudulently.

There is no minimum age of consent for boys, although sodomy is illegal at any age (section 58E) and it is illegal for men aged 21 or more to commit indecent acts on boys under the age of 16 (section 58C). Similarly, it is illegal for women aged 21 or more to commit indecent acts on girls under the age of 16 (section 58B).

[edit] Tonga

It is an offence to have carnal knowledge of a girl under the age of 12: section 120 of Tonga's Criminal Offences Act, and it is no defence to believe she consented (section 122). A girl under the age of 16 cannot legally consent to acts that would constitute indecent assault, but for her consent (section 124). Indecent assault on any child under the age of 12 is an offence, and consent of the victim is no defense (section 125). Sodomy is illegal at any age (section 136).

[edit] United States

[edit] Hawaii

The age of consent in Hawaii is 16 years old. With an exception that those aged 14 and 15 may consent to sex with those of the same age. [3]

[edit] See also

[edit] References

  1. ^ Crimes Act 1914 - {s50AD}
  2. ^ Crimes Act 1914 - {s50BA}
  3. ^ Crimes Act 1914 - {s50BB}
  4. ^ Crimes Act 1914 - {s50BC}&{s50BD}
  5. ^ Fijian High Commission confirms; no more arrests for consensual gay sex in Fiji.
  6. ^ Teens face tough new underage sex penalty.
  7. ^ PM condemns decriminalising 12-year-old sex.
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