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What is the legal age of consent for sexual intercourse in South Australia?


legal age of sexual intercourse

The legal age of consent for sexual intercourse depends on the law that applies in the particular country or state where the sexual act takes place.

In today’s article, we’re talking about unlawful sexual intercourse in South Australia.

In South Australia this is determined under the Criminal Law Consolidation Act (SA) 1935, which refers to sexual intercourse with a child as unlawful sexual intercourse.

A person is guilty of unlawful sexual intercourse if they have sexual intercourse with a person who is under 17 years of age. The maximum penalty for this offence is 10 years imprisonment.

Importantly, if the sexual intercourse is with a person who is under 14 years of age then the maximum penalty increases to life imprisonment.

So basically, in most cases in South Australia the age of consent is 17 years.

Is the age of sexual consent always 17?

No. The age of consent increases to 18 years of age if the person committing the act holds a position of authority over the other person. Examples of a person said to hold authority over another person are:

  • Teacher;
  • Foster-parent, step-parent or guardian;
  • Religious official or spiritual leader;
  • Medical practitioner, psychologist or social worker treating the child;
  • Correctional services or training centre employee or administrator acting in the course of his or her duties to the child;
  • Employer or other person who is in charge of the child’s employment conditions.

For these types of offences, the maximum penalty is 10 years imprisonment.

In a current matter before the South Australia courts an ambulance officer is defending charges including unlawful sexual intercourse on the basis that he was not in a position of authority over the victims of the offences, when the offences allegedly occurred.

What if the person engaging in sexual intercourse is over 17 but has an intellectual disability?

A person also commits unlawful sexual intercourse if they engage in sexual intercourse knowing that the other person involved is, by reason of intellectual disability, unable to understand the nature and consequences of sexual intercourse. The maximum penalty for this offence is 10 years imprisonment.

Is there any defence for unlawful sexual intercourse?

Consent from the victim of the offence is not a defence to any of these offences and nor is parental permission.

There is, however a defence to the charge of unlawful sexual intercourse with a person under the age of 17 years only if the victim of the offence was at least 16 years old at the time, and if the person committing the offence was themselves aged under 17 years or if they reasonably believed that the victim was aged 17 years or older.

It is important to note that sexual intercourse does not necessarily need to involve penile vagina intercourse in order for it to be an offence. The Criminal Law Consolidation Act (SA) 1935 defines sexual intercourse as any activity (whether of a heterosexual or homosexual nature) consisting of or involving:

  • penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object; or
  • fellatio; or

The law relating to unlawful sexual intercourse is quite strict and the penalties are severe. This is due to the community’s desire to protect vulnerable people such as children and those with intellectual disabilities, from inappropriate sexual acts.

What about teenagers engaging in sexual intercourse?

People must be aware that in some cases this might also mean that two teenagers who are in a relationship could be committing serious criminal offences if that relationship is of a sexual nature.

Are there time limits on police taking action for unlawful sexual intercourse?

There is no time limit in relation to the police bringing charges of this type against offenders so it is possible that charges could be laid some years after the offence takes place.

In a time when social media is so popular the law must also move with the times to protect vulnerable people from offenders who target them using this technology. It is already an offence under the Criminal Law Consolidation Act (SA) 1935 to procure sexual intercourse through threats or intimidation or by false pretences, false representations or by other fraudulent means.

There is a strong push also to make it a clear criminal offence to target people under the age of consent by misrepresenting your own age. This push comes from the mother of Carly Ryan, the 15 year old South Australian girl who was murdered by a man posing as a teenager online.

It is important that both minors and adults understand the law as it relates to the legal age of consent for sexual intercourse as the consequences of not knowing the law are very serious. Not only will an offender face up to 10 years or more in prison, they also face the prospect of being registered as a sex offender for the rest of their life.

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Get in touch with today's blog writer :
Eva Bailey 

Senior Associate in Family Law  and  Criminal and Police Matters

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.