Is it illegal to have consensual sex with someone who lies about their age?

Published 21 May 2018

The #MeToo and #TimesUp movements have placed increased focus on sexual harassment and consent issues over the last few months.

In NSW, the legal age of consent is 16, which means it is illegal for anyone to participate in sexual activity with a person below this age, even if both parties are willing.

But is this still the case when a minor lies about their age? If an 18-year-old man meets a 15-year-old girl in a nightclub, but she claims to be 17, is he protected from statutory rape laws if they later have sex?

Was it an honest and reasonable mistake?

People who are accused of sexual misconduct when an alleged victim has lied about their age can argue that they made an honest and reasonable mistake by having sex with an under-age individual.

In other words, they would be required to provide evidence that they believed their accuser was over the legal age of consent. If the defendant can supply ample proof that the alleged victim had lied about their age, the prosecution would then need to show beyond a reasonable doubt that this was not the case.

However, the courts rarely accept a defendant's claim if the individual is ignorant of the law. For example, the age of consent is 16 in NSW but 17 in South Australia. Nevertheless, a defence that relies on the accused being simply unaware of different age of consent laws is unlikely to succeed.

Are there any legal precedents?

A commonly cited case is the High Court's ruling on CTM v The Queen [2008], which involved a 17-year-old man who was charged with sexually assaulting a minor.

The victim, who was 15 at the time, had been out drinking with her friends and ended up at the defendant's flat, where she fell asleep and was taken to one of the bedrooms.

According to her, the defendant and two of his friends then sexually assaulted her.

The victim and the defendant knew each other from high school and he claimed to police officers that she told him she was 16 years old - the legal age of consent in NSW.

How did the case unfold?

The defendant was found guilty in the District Court of having sexual intercourse with a person aged between 14 and 16. He appealed the decision on the basis he had made an honest and reasonable mistake about the girl's age.

While the High Court acknowledged that the defendant had the right to raise an argument on this principle, his legal team had failed to provide sufficient evidence that an honest mistake had occurred. The appeal was therefore dismissed.

As we can see, sexual assault and child abuse laws in Australia can be complex, so it's important to seek comprehensive legal advice from qualified professionals.

If you are looking to pursue compensation for institutional sexual abuse, please contact expert lawyers at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers for help.