Ages of Consent and Criminal Liability in Queensland
At a time when youth justice issues in Queensland feature daily in the news headlines, it’s timely to remind about some of the basic legal facts relevant to juveniles, including the minimum ages of consent to have sex and when they can be held criminally liable.
The age at which children should become criminally responsible, in particular, is currently a contentious issue, with a strong movement to raise the age in Australia counter-balanced by those arguing for harsher treatment of juvenile criminals.
Age of criminal responsibility
In all states and territories of Australia, including Queensland, children under the age of 10 cannot be held criminally responsible for their actions and so cannot be charged with criminal offences.
It should be noted that 10 years is young compared with many other countries around the world. This year, the ACT plans to raise the age of criminal responsibility to 12 years of age, and 14 years two years after that.
Between the ages of 10-14, the principle of doli incapax applies, meaning children in this age group are assumed to be criminally incapable unless prosecutors can demonstrate that the child had knowledge that what they were doing was wrong.
A child 15 years of age and above is considered to be criminally responsible for his or her actions. They will be dealt with by either the Children’s Court of Queensland or the Children’s Court (Magistrates Court jurisdiction) and, depending on the nature of the crime, a range of sentencing options are available.
As of February 2018, children aged 17 years of age are no longer considered to be adult offenders and are dealt with in the youth justice system. If an 18-year-old offender committed a crime before turning 18, they will be dealt with as a juvenile offender.
The penalties and sentencing options for juvenile offenders are set out under the Youth Justice Act 1992 (Qld) (‘the Youth Justice Act’). Treatment of juvenile offenders differs from adults in that:
- a parent or guardian will usually be required to be present in court;
- penalties are lighter;
- maximum custodial sentences are shorter;
- if a custodial sentence is imposed, it will be served as detention rather than imprisonment under the supervision of Youth Justice Services rather than Corrective Services.
Young offenders may also be let off with a caution, a reprimand, community service order, fine or probation. They may also be directed to undertake a drug diversion program or participate in a restorative justice program where they face their victims.
Age of consent
Important age limits apply to when a youth can legally have sex, primarily designed to protect juveniles from predatory behaviour by adults. These age limits apply to both heterosexual and same-sex relationships.
It’s unlawful for anyone to have sex with a person under the age of 16, including sexual touching, having a sexual act performed in front of them, or having an adult get them to perform a sexual act, even if the person under 16 agrees.
Sexual acts include:
- sexual penetration, including any act that involves a penis penetrating a vagina, anus or mouth;
- penetrating a vagina or anus with an object or another part of the body;
- touching the child under 16 on the genitals, buttocks or breasts, or somewhere else in a sexual way;
- having another person’s genitals exposed to them;
- having inappropriate photos taken of them;
- having anal sex if either or both of the individuals are under 16.
Sexual activity can be considered even more serious in the eyes of the law if the person is under 12 years of age; if the person against who the sexual act is perpetrated is a relation; if they were the person’s guardian, or the victim was in the person’s care; and if the victim is intellectually disabled. Harsher penalties apply for any of these offences.
In Queensland a child sexual offence includes:
- indecent treatment of a child;
- carnal knowledge with or of a child;
- grooming a child (or their parent or carer);
- making child exploitation material;
- maintaining a sexual relationship with a child.
A child who is believed to be at risk of harm due to another person’s sexual acts may become the subject of a court order to be placed in the care and protection of Child Safety Services.
Any forced sexual activity is a criminal offence. It doesn’t matter whether the person who touches a person under 16 in a sexual way or who has sex with them is a relative, friend, teacher or stranger, the activity is still criminal.
Defences to sexual offence crimes against juveniles
Under section 115 of the Queensland Criminal Code 1899, a person charged with a sexual offence against a child of or over the age of 12 may rely on a defence that the accused believed on reasonable grounds that the child was of or above the age of 16.
If the child is a person with an impairment of the mind, it is a defence to the offence being one of aggravation if the accused person believed on reasonable grounds that the child was not a person with an impairment of the mind.
The importance of expert legal advice
If you or someone you know is in the situation where they have been accused of a sexual offence against a child, or you are the parent or guardian of a child who is accused of a criminal offence, you need expert legal advice as soon as possible.
Hannay Lawyers are an award-winning firm with long experience of the Queensland justice system. our Brisbane criminal lawyers will bring our years of experience and knowledge to your matter, and represent you with the utmost professionalism and commitment. Contact us today if anything in this article applies to your situation.