In the light of the current proposed changes to the age of consent, concerns have been raised as to whether lowering the age of consent for homosexual sex will put more 16-17yo boys at risk of sexual abuse. Is it a valid concern? On what principles are current laws based? What social constructs are implicit in both the proposed changes and the concerns about them? Are the current laws discriminatory?

First things first - what are the current laws and what is the proposed change? As the law stands now (May 2003), the legal age of consent for heterosexual sex is 16 for boys and girls. The legal age of consent for gay sex is 18, and for lesbian sex is 16. However, S.92E.(3)(b) of the Crimes Act also dictates that if one party is over 10 years old, and the other party is not more than two years older, that constitutes a defence to a "without consent" charge. [1]

The other defence that is allowed is that of believing that the young person was over the age of consent. However, in order to use the "he seemed [whatever age]" defence at law, you must be able to prove sufficient cause for believing that the young person was older (for example, you met them in a pub [they ought not to be there unless they're 18] or they're in year 12 at school [but even then you ought to be checking, given the usual age of year 12 students]). [2] It's absolutely not sufficient defence to say "but s/he told me s/he was 18 (or 16)".

The proposed change is to drop the age of consent for gay sex to 16 years, bringing it into line with lesbian sex and heterosexual sex.

Currently, if a 16 or 17 year old boy is abused by a male, the age of consent is 16. If abused by a female, the age of consent is 18. To argue that dropping the age of consent for homosexual sex will make 16-17 year old males more vulnerable to abuse fails to grasp the nature of abuse, the profile of the average perpetrator, and the origin of the danger.

The large majority of perpetrators of sexual abuse are heterosexual. That means that - according to current laws - the majority of abuse perpetrated on 16-17 year old boys is legal because it is heterosexual (ie. the abuser is female). However, age is only one factor in abuse. Abuse happens in all sorts of circumstances, and what determines it to be abuse is the power differential in the relationship. Age is ONE of at least five defined power factors. The others are: psychological invulnerability, physical strength, rank and charisma.[3] Talk to almost any abuse victim (including adults) and they'll tell you that their abuser had at least three of those power factors. Most of them assent to all five.

The rank factor is dealt with to some extent by S.92P(h) of the Crimes Act, where consent is considered invalid if caused "by the abuse by the other person of his or her position of authority over, or professional or other trust in relation to, the person". [4] That makes invalid the consent of a young person drawn into a sexual relationship with a teacher, for example.

My own abuse makes an interesting case study in this area. I was 14 when I was abused

(through to 17). The abuser was the parish minister; the era 1980-83 (relevant in terms of the applicable laws). When questioned by the police some 12 years afterwards, the perpetrator's immediate excuse was that he hadn't known my age. The police challenged that lie on the basis that he a) knew what year I was in at school, b) knew that his children were my age, and c) had seen my baptism certificate (and thus my birthdate) when he'd prepared me for confirmation the previous

year. But charges were not proceeded with since according to the DPP "because [I] was over 14, [my] consent was valid at common law". That particular tradition of common law was designed to allow for underage, but equal, teenage sex. The fact that my perpetrator was 44 was legally irrelevant in the DPP's eyes, in spite of the fact that they acknowledged that there was "a gross breach of trust". [5]

One assertion made by concerned parents is that current laws more appropriately reflect the age of sexual maturity than the proposed equal consent age. Leaving aside discussion of the problematic nature of making laws based on "the average", how relevant is this concern? It is a widely accepted fact that girls mature through adolescence (both physically and emotionally) approximately 2 years earlier than boys. That being so, there is some justification for asserting that the age of consent should be higher for males than for females. But currently that is only the case for homosexual sex, not for heterosexual sex. Are we suggesting that heterosexual males mature earlier than homosexual males?

However, it's not only a biological issue. There are all sorts of social issues too. For instance, it's not so very long since the marriage age for girls was considerably lower than it is now. That was a social construct of the time, based on way more than the age of sexual maturity. Another point -

currently the marriageable age is 18 for both boys and girls. If girls mature so much earlier, then why isn't the marriage age also different for males and females? Or this - should it be compulsory to have a period of years in between the age of sexual consent and the marriageable age?

We need to be extremely careful of our words, too. Lowering the age of consent from 18 to 16 does not put those young people at risk from paedophiles. Paedophiles are defined as those who target prepubescent children, which is generally accepted in expert circles to be under 13s of both sexes. The risk in incautiousness over terminology in discussions on this topic is that we incorrectly imply that a greater number of gay people are paedophiles.

I believe that those who wish to express their sexuality should not be subject to different laws based on their sexual preference. Currently that IS what the law does. And current laws are not consistent with a premise that the age of consent is based on sexual maturity. If boys only mature sexually at 18, then why should the age of consent be 16 for them if they're in a heterosexual relationship? Conversely, if they're mature enough to have heterosexual sex at 16, then why not homosexual sex?

I don't believe that lowering the age of consent for homosexual sex is going to be the factor that puts more young people in danger. Whatever your views on the age of consent for females vs males, or indeed the age of consent in general, a change that makes the age of consent the same no matter whether the person is homosexual or heterosexual should be implemented. But I'd also like to see an in-between step in the laws. I'd like there to be a period after the age of consent (perhaps from 16 to 21yo) when intercourse is still illegal if there's more than a 5 year (or similar) age difference. This would still offer to just-mature teens and young adults some protection from an excessive age difference (and hence power imbalance and abuse) in the relationship.

Clare Pascoe Henderson

May 2003

~~~ [1] http://www.austlii.edu.au/au/legis/act/consol_act/ca190082/s92e.html

[2] S92E.(3)(a) http://www.austlii.edu.au/au/legis/act/consol_act/ca190082/s92e.html

[3] Ormerod, Neil and Thea, "When Ministers Sin", Millennium Books, 1995.

[4] http://www.austlii.edu.au/au/legis/act/consol_act/ca190082/s92p.html

[5] Current law at the time stated that if the abuser was in a position of authority over the victim, the age of consent was 17 years old instead of 16. However, clergy were not included in the list of those having authority. Father, step-fathers and schoolteachers were.