1009
SETTING THE BOUNDARIES OF
CHILD SEXUAL ASSAULT:
CONSENT AND MISTAKE AS TO AGE DEFENCES
K ATE W ARNER
*
[Many changes have been made to the substantive criminal law relating to child sexual
assault in recent decades in response to the recognition of the problems and risks
associated with child sexual abuse. Considerable dierences between jurisdictions have
emerged in oence structures and in relation to the defences of consent and mistake as to
age. is article argues that attempts to better protect children and young people from
sexual abuse and exploitation have resulted in the over-criminalisation of sexual
behaviour between young people and the creation of absolute liability oences that have
the potential for grave injustice. A model for the defences of consent and mistake as to age
is suggested which sets appropriate boundaries for the criminal law without diminishing
the law’s protection of children from sexual abuse by adults.]
C ONTENTS
I Introduction ............................................................................................................ 1010
II e Current Law .................................................................................................... 1011
A Sexual Intercourse with a Young Person: e Tasmanian Position ... 1011
B e Position in Other Jurisdictions ........................................................ 1012
1 e ‘No-Defence Age’ .................................................................. 1012
2 e Age of Consent ...................................................................... 1014
3 Consent Defences ......................................................................... 1015
4 Mistake as to Age .......................................................................... 1016
III Evaluating the Defences of Consent and Mistake as to Age ............................ 1016
A Are Similar-Age Consent Defences Appropriate? ................................ 1017
*
LLB(Hons), LLM (Tas); Professor, Faculty of Law, University of Tasmania. is article was
drawn from and developed from Tasmania Law Reform Institute, Sexual Oences against
You ng People , Issues Paper No 17 (2012) and Tasmania Law Reform Institute, Sexual Oences
against Young People, Final Report No 18 (2012), both of which were written by the author for
the Tasmania Law Reform Institute. However, the views expressed in this paper are those of
the author alone.
1010 Melbourne University Law Review [Vol 36:1009
B Restricting the Mistake as to Age Defence by a ‘No-Defence Age’ .... 1021
1 A No-Defence Age Is Contrary to the Fundamental
Presumption of Mens Rea ........................................................... 1022
2 Is a No-Defence Age an Infringement of Human Rights? ...... 1026
3 Is a No-Defence Age a Deterrent? .............................................. 1028
4 Making Prosecution Easier ......................................................... 1029
5 e ‘in Ice Principle’ ................................................................ 1030
6 Absolute Liability Is Justied by the Seriousness of
the Harm ........................................................................................ 1031
C Other Restrictions on the Mistake as to Age Defence ......................... 1032
1 Age Restrictions on Perpetrators ................................................ 1033
2 Adding a Requirement to Take Reasonable Steps .................... 1034
IV Conclusion .............................................................................................................. 1035
I INTRODUCTION
e issue of the appropriate ambit of defences to crimes of child sexual assault
is one that has continued to divide both judges and policy makers across the
common law world. Determining when consent or mistake as to age should
be a defence gives rise to interesting and important questions of policy and
principle as to the scope of the criminal law, including the issue of the
appropriateness of imposing criminal liability for an imprisonable oence in
cases where there is no mens rea in relation to a material element of
the oence.
is article will provide an overview of Australian laws dealing with the
defences of consent and mistake as to age of sexual oences involving young
people (children and adolescents). Australian criminal laws are notorious for
their lack of uniformity and child sexual assault laws and their defences are no
exception. An attempt will be made to evaluate the scope of defences of
mistake as to age and consent, and to suggest a model that achieves the aim of
protecting young and vulnerable children and adolescents from premature
sexual activity, sexual exploitation and abuse without over-criminalising
sexual behaviour. For two reasons, the starting point in this article is the
Tasmanian law. First, because the mistake as to age and the consent defences
make it the most liberal and permissive in Australia. And secondly, because
the relevant laws are currently under review in Tasmania.
1
For simplicity’s
1
Tasmania L aw Refor m Institute, Sexual Oences against Young People, Final Report No 18
(2012). e impetus for the report was a case in which a 12-year-old girl was prostituted by
her mother and all but one of her clients escaped prosecution on the grounds that there was
2013] Setting the Boundaries of Child Sexual Assault 1011
sake, the focus will be on sexual penetration or sexual intercourse with a
young person as this oence is one of the most serious of the child-specic
sex oences and generally exemplies the scope of the consent and mistake
defences in each jurisdiction.
2
For comparative purposes, reference will also
be made to the legal positions in the United Kingdom, New Zealand
and Canada.
II T
HE C URRENT LAW
A Sexual Intercourse with a Young Person: e Tasmanian Position
In Tasmania, sexual intercourse with a young person under the age of 17 years
is a crime.
3
All the prosecution must prove is that there was an act of sexual
intercourse with a person who was under the age of 17. As a general rule, the
consent of the young person is no defence. However, a mistake as to age is
expressly made a defence. So if the defendant can prove a reasonable belief
that the young person was over the age of 17, no crime has been committed.
4
While 17 is the age of consent, there are defences in cases where the defendant
and their sexual partner were of similar age. If the young person is 15 or 16,
consent of the young person is a defence if the defendant was not more than
ve years older.
5
If the young person was 12, 13 or 14, the permissible age
dierence is three years.
6
e consent defence is not available for anal sexual
intercourse.
7
no reasonable prospect of conviction, primarily because of the defence of honest and reason-
able belief that she was over the age of consent.
2
A number of oences also proscribe non-penetrative sexual conduct irrespective of consent,
typically with the same defences that apply to sexual penetration of a child or young person
(for example, indecent assault contrary to the Criminal Code Act 1924 (Tas) s 127 (‘Criminal
Code (Tas)’)).
3
Criminal Code (Tas) s 124(1).
4
Ibid s 124(2).
5
Ibid s 124(3)(a).
6
Ibid s 124(3)(b). As identied by the Tasmania Law Reform Institute, it is unclear whether it
is possible for an accused to combine the general defence of mistake in s 14 of the Criminal
Code (Tas) with the consent defences in s 124(3). For example, it is not clear if an accused
aged 18 who has sexual intercourse with a girl of 14 can argue that he honestly and reasona-
bly believed the girl was 16, an age which, if true, would have made his conduct lawful by
virtue of the consent defence in s 124(3)(a). See Tasmania Law Reform Institute, Sexual
Oences against Young People (Final Report), above n 1, 18 [2.2.3].
7
Criminal Code (Tas) s 124(5), inserted by Criminal Code Amendment Act 1997 (Tas) s 6.
1012 Melbourne University Law Review [Vol 36:1009
B e Position in Other Jurisdictions
Each state and territory has its own hierarchy of child sexual oences.
However, all states have oences that proscribe sexual intercourse with a
young person, although they dier with respect to the denition of sexual
intercourse; the age of consent; the scope of the defence of consent; and the
scope of the defence of mistake as to age. is section will focus on four
aspects of these laws: the ‘no-defence age’, the age of consent, similar-age
consent defences and the mistake as to age defence.
1 e ‘No-Defence Age’
In all Australian jurisdictions except Tasmania there is a ‘no-defence age’, in
other words an age below which neither the consent of the young person nor
mistake as to the age of the young person is a defence.
8
is is 10 years old in
New South Wales and the Australian Capital Territory; 12 in Queensland and
Victoria; 13 in Western Australia, 14 in the Northern Territory and 16 in
South Australia. States achieve this in dierent ways:
1 NSW, the ACT, Western Australia and South Australia create separate
oences for ages under which neither consent nor mistake of age is
a defence:
a) NSW
9
and the ACT
10
have separate oences for sexual intercourse with
a child under the age of 10;
b) Western Australia has a separate oence relating to sexual penetration
of a child under the age of 13;
11
and
8
e Commonwealth oence of sexual intercourse with a young person overseas contrary to
Criminal Code Act 1995 (Cth) sch s 272.8 (‘Criminal Code (Cth)’) does not have a ‘no-defence
age’. An honest mistake that the child was at least 16 is a defence irrespective of the age of the
child: at s 272.16(1).
9
Crimes Act 1900 (NSW) s 66A. Section 77 provides that consent is not a defence; there is no
provision for mistake as to age so presumably the common law defence is not applicable. But
this is not entirely clear: see CTM v e Queen (2008) 236 CLR 440, 505–6 [230] (Heydon J).
10
Crimes Act 1900 (ACT) s 55(1). Mistake as to age is expressly made a defence to the crime of
sexual intercourse with a young person under 16, as is consent if the defendant was not more
than two years older: at s 55(3). By implication, neither consent nor mistake are a defence to
the crime in s 55(1).
11
Criminal Code Act Compilation Act 1913 (WA) sch s 320(1)–(2) (‘Criminal Code (WA)’);
cf at s 321 which provides a limited mistake as to age defence for sexual oences against a
child of or over the age of 13 and under the age of 16.
2013] Setting the Boundaries of Child Sexual Assault 1013
c) South Australia has a separate oence of sexual intercourse with any
person under the age of 14.
12
2 Victoria, Queensland and the Northern Territory make the defence of
consent conditional on proof of age above the no-defence age:
a) Victoria and Queensland have a single oence of sexual intercourse
with a young person under the age of 16. e defences of consent or
mistake as to age (or marriage) in Victoria and mistake as to age in
Queensland are conditional on the fact that the young person is 12
or older.
13
b) In the Northern Territory, the defence of mistake as to age to the crime
of sexual intercourse (or gross indecency) with a child under 16 is con-
ditional on proof that the child was of or above the age of 14.
14
e Model Criminal Code Ocers Committee recommended a no-
defence age but le the setting of the age to each jurisdiction in its implemen-
tation of the Code.
15
In the Discussion Paper it had recommended a no-
defence age of 10.
16
New Zealand and the United Kingdom also have a no-
defence age. In New Zealand this is 12
17
and in the United Kingdom it is 13.
18
Like Tasmania, Canada and Ireland do not have a no-defence age that limits
the defence of mistake. In Canada, mistake as to age is a defence to a charge of
sexual interference with a person under the age of 16 without any restriction
on the age of the complainant.
19
In Ireland, ‘delement’ of a child under 15
and of a child under 17 both have the defence of honest mistake as to age
without a restriction on the age of the child.
20
12
Criminal Law Consolidation Act 1935 (SA) s 49(1).
13
Crimes Act 1958 (Vic) ss 45(1), (4); Criminal Code Act 1899 (Qld) sch 1 s 215 (‘Criminal Code
(Qld)’).
14
Criminal Code Act 1983 (NT) s 127(1), (4) (‘Criminal Code (NT)’).
15
Model Criminal Code Ocers Committee, ‘Model Criminal Code — Chapter 5: Sexual
Oences against the Person’ (Report, Model Criminal Code Ocers Committee of the Stand-
ing Committee of Attorneys-General, May 1999) 151.
16
See ibid.
17
Crimes Act 1961 (NZ) expressly provides that neither mistake as to age nor consent is a
defence to a charge of sexual conduct with a child under 12: at ss 132(4)–(5).
18
See Sexual Oences Act 2003 (UK) c 42, s 5; Criminal Law (Consolidation) (Scotland) Act 1995
(UK) c 39, s 5(1), which provide an oence of sexual intercourse with a girl under the age of
13 with no defences.
19
Criminal Code, RSC 1985, c C-46, s 150.1(4) (‘Criminal Code (Canada)’).
20
Criminal Law (Sexual Oences) Act 2006 (Ireland) ss 2(1), (3), 3(1), (5).
1014 Melbourne University Law Review [Vol 36:1009
2 e Age of Consent
Despite repeated calls for uniformity, there is no consistency in relation to the
age of consent in Australia. In South Australia (as in Tasmania) the age of
consent is 17, and it is 16 in the other Australian states and territories, at least
in relation to child sexual assault oences.
21
But this is complicated by the
similar-age consent defences considered below. In the Criminal Code (Cth),
the age of consent is 16 for the purposes of the crime of engaging in sexual
intercourse with a child outside Australia.
22
For child pornography oences it
is 18 in all Australian jurisdictions except Western Australia.
23
is is ex-
plained by the need to comply with the International Labour Organization’s
Convention concerning the Prohibition and Immediate Action for the Elimina-
tion of the Worst Forms of Child Labour,
24
which requires signatories to
prohibit the use, procuring or oering of a child under 18 for production of
pornography. In the United Kingdom, Canada and New Zealand, the age of
consent is 16 for child sexual assault oences.
25
In Ireland it is 17.
26
e Model Criminal Code does not specify the age of consent, but the
Ocers Committee recommended a uniform age between jurisdictions and
uniformity within each jurisdiction for females and males, and for same-sex
contact.
27
Most recently, the Australian Law Reform Commission and the
New South Wales Law Reform Commission recommended that the age of
consent be set at 16 with no distinction based on gender, sexuality or any
other factor.
28
A review of the general age of consent is beyond the scope of
this article. Reassessing the age of consent is a complex and controversial issue
21
Criminal Law Consolidation Act 1935 (SA) s 49(3); Criminal Code (Tas) s 124(1); Criminal
Code (WA) s 321(1); Crimes Act 1958 (Vic) s 45(1); Crimes Act 1900 (NSW) s 66C; Criminal
Code (Qld) s 215; Criminal Code (NT) s 127; Crimes Act 1900 (NT) s 55(2).
22
Section 272.8.
23
Criminal Code (WA) s 217A.
24
Opened for signature 17 June 1999, 2133 UNTS 161 (entered into force 19 November 2000)
arts 1–2, 3(b).
25
Sexual Oences Act 2003 (UK) c 42, s 9(1); Criminal Code (Canada) s 150.1; Crimes Act 1961
(NZ) s 134.
26
Criminal Law (Sexual Oences) Act 2006 (Ireland) s 3. It is 16 in Northern Ireland: Sexual
Oences (Northern Ireland) Order 2008 (NI) SI 2008/1769, s 16.
27
Model Criminal Code Ocers Committee, above n 15, 123.
28
Australian Law Reform Commission and New South Wales Law Reform Commission, Family
Violence — A National Legal Response, ALRC Report No 114, NSWLRC Report No 128
(2010) 1141 [25.49]. See also Commonwealth, Royal Commission on Human Relationships,
Final Report (1977) vol 5, 210 recommending that the general age of consent be 15 years of
age; Model Criminal Code Ocers Committee, above n 15, 123.
2013] Setting the Boundaries of Child Sexual Assault 1015
which needs to be informed by the physical development and psychological
competence of children to make decisions concerning sexual behaviour as
well as the impact of age of consent laws on inhibiting access to contraception,
abortion and health care.
29
3 Consent Defences
To focus only on the general age of consent in describing child sexual oences
is misleading because in some jurisdictions the age of consent is variable in
the sense that it depends on the availability of similar-age consent defences.
As described above, the age of consent in Tasmania depends upon the age of
the participants in the sexual act. A young person who is aged from 12 to 14
can lawfully consent to sexual intercourse with a person who is not more than
three years older. And a young person aged 15 or 16 can lawfully consent to
sexual intercourse with a person who is not more thanve years older. In
South Australia, the defence of consent is only available to a person who is
under the age of 17 and only when the person with whom they had sexual
intercourse (the complainant) was at least 16.
30
In Victoria, as long as the
complainant is at least 12 years old and the accused is not more than two years
older, consent is a defence.
31
e ACT has a similar-age consent defence if the
complainant is 10 years of age or older and the accused is not more than two
years older.
32
NSW, Queensland, Western Australia and the Northern Terri-
tory do not have a similar-age consent defence. e Model Criminal Code
contains a ‘similarity of age’ defence which species an age dierence of two
years, following Victoria and the ACT.
33
e Canadian Criminal Code provision closely parallels the Tasmanian
position in relation to similar-age consent defences: consent is available as a
defence if the complainant is between the age of 12 and 14 and the accused is
not more than two years older or if the complainant is 14 or 15 and the
accused is no more than ve years older.
34
29
For a discussion of matters that should inform a review of the age of consent, see Matthew
Waites, ‘e Age of Consent and Sexual Consent’ in Mark Cowling and Paul Reynolds (eds),
Making Sense of Sexual Consent (Ashgate, 2004) 73, 73–92.
30
Criminal Law Consolidation Act 1935 (SA) s 49(4).
31
Crimes Act 1958 (Vic) s 45(4).
32
Crimes Act 1900 (ACT) s 55(3).
33
Model Criminal Code Ocers Committee, above n 15, 148.
34
Criminal Code (Canada) ss 150.1(2)–(2.1).
1016 Melbourne University Law Review [Vol 36:1009
4 Mistake as to Age
As explained above, in Tasmania, the defence of mistake as to age to a charge
of sexual intercourse with a young person is a defence if the accused can prove
on the balance of probabilities that he or she believed on reasonable grounds
that the young person was at least 17 years of age.
35
Other than placing the
onus of proof on the accused, there are no other restrictions on this defence.
In all other Australian jurisdictions, the defence of mistake is restricted by the
no-defence age. When the mistake defence is available, the onus of proof is on
the accused in all jurisdictions except NSW.
36
Western Australia also limits
the defence by restricting it to accused persons who are not more than three
years older than the child.
37
South Australia’s mistake defence is even more
restrictive — it is only available if the young person or child is at least 16.
38
is means that, in eect, the no-defence age in South Australia is 16.
In the United Kingdom, the onus is on the Crown to prove that the ac-
cused did not reasonably believe the child or young person to be 16 or over.
39
In Scotland, it seems the onus is on the accused to prove they had reasonable
cause to believe the other person was 16,
40
and in Ireland, the onus is on the
accused to prove an honest belief that the child was 15 or 17, depending on
the charge.
41
New Zealand and Canada have innovative restrictions on the
defence of mistake, which will be discussed below.
III E
VA LUAT I N G T H E D EFENCES OF
C
ONSENT AND M ISTAKE AS TO A GE
e above discussion demonstrates that there are quite striking dierences
between child sex oence laws in respect of both consent defences and the
defence of mistake as to age.
35
Criminal Code (Tas) s 124(2).
36
e defence is not expressly mentioned in Crimes Act 1900 (NSW) s 66C but because it
applies by virtue of the common law (at least to s 66C(3)), the onus is on the Crown: CTM v
e Queen (2008) 236 CLR 440, 456 [35] (Gleeson CJ, Gummow, Crennan and Kiefel JJ),
473 [105] (Kirby J), 495 [189] (Hayne J).
37
Criminal Code (WA) s 321(9).
38
Criminal Law Consolidation Act 1935 (SA) s 49(4).
39
Sexual Oences Act 2003 (UK) c 42, s 9(1)(c)(i).
40
Sexual Oences (Scotland) Act 2009 (Scot) asp 9, s 39(1).
41
Criminal Law (Sexual Oences) Act 2006 (Ireland) ss 2(3), 3(5).
2013] Setting the Boundaries of Child Sexual Assault 1017
A Are Similar-Age Consent Defences Appropriate?
As the brief overview of the oence of sexual penetration of a young person
demonstrates, Tasmania and Canada have quite liberal similar-age consent
defences so that a young person who has sexual intercourse with another
young person of a similar age is not caught by the oence. In Tasmania, for
example, a 14-year-old cannot be prosecuted for having sex with a person
who is 12, 13 or 14. And if that person is 15, their sexual partner cannot be
prosecuted for sexual intercourse with a young person unless they are at least
20. Victoria, the ACT and South Australia also make some, but more limited,
provision for similar-age consent defences.
It is clear that many young people under the age of 16 are sexually active. A
national study of Australian secondary school students in 2008 found that
more than 50 per cent of Year 10 students had engaged in sexual touching, 33
per cent had engaged in oral sex and more than 25 per cent had engaged in
sexual intercourse.
42
Whilst such sexual behaviour between children and
adolescents may be regarded as premature and something to be discouraged,
whether it is appropriate to label it as criminal is questionable. Arguably it
does not warrant the intervention of the criminal law. is is not to deny the
dangers and risks in premature sex, nor to condone it. Rather than prohibi-
tion, information and advice about sex education, relationships and health
should be the focus. It is important to ensure that young people have enough
information to enable them to make rational and well-judged decisions about
whether they are ready and able to agree to sex and to enter into sexual
relationships without elements of coercing another or being coerced. Moreo-
ver, criminalising teenage sexual behaviour can have negative consequences
such as inhibiting access to and provision of contraception and health care for
young people. And if criminal convictions result, there is the stigma of a
conviction for a sex oence and, in some jurisdictions, automatic inclusion on
a sex oender register.
43
Given that the statutory restrictions on underage sex
extend beyond penetration and cover less intrusive acts such as sexual
fondling and petting, the criminalisation of adolescent sexual behaviour is
42
Anthony Smith et al, ‘Secondary Students and Sexual Health 2008: Results of the 4
th
National
Survey of Australian Secondary Students, HIV/AIDS and Sexual Health’ (Monograph Series
No 70, Australian Research Centre in Sex, Health & Society, La Trobe University, July
2009) 26.
43
A number of Australian jurisdictions (NSW, Western Australia, Queensland and the ACT)
have mandatory registration for juvenile oenders: see Law Reform Commission of Western
Australia, Community Protection (Oender Reporting) Act 2004, Final Report No 101 (2012)
20. Mandatory registration can be an injustice for young adult oenders: at 31.
1018 Melbourne University Law Review [Vol 36:1009
even more inappropriate. Providing similar-age consent defences recognises
the reality that consensual sexual behaviour does take place between young
people and ensures that the oences are used for their main purpose, namely
to target adults who have sex with children.
44
Counter-arguments rely upon the declaratory and educative role of the
criminal law and assert that similar-age consent defences send the wrong
message to young people about when becoming sexually active is acceptable.
It can also be argued that sexual relationships and encounters can be abusive
between similarly aged young people and similar-age consent defences
remove the ability to prosecute in cases where there is exploitation. Where the
conduct is genuinely consensual, prosecutorial discretion can be exercised to
decline to prosecute.e objection to this is that prosecutorial discretion is
not an acceptable response to the overreach of a criminal law which has the
capacity to attach the label ‘sex oender’ to a considerable proportion of
young people. Reliance upon prosecutorial or judicial discretion to mitigate
the harshness of an inappropriate law is, as Spencer argues, contrary to the
rule of law.
45
Moreover, reforms to the denition of consent mean that where
a young person passively submits to undue pressure to have sex, the appropri-
ate charge is one of rape, not sexual intercourse with a young person. In cases
of a grudging and reluctant submission, the prosecution can rely upon the
lack of a communicated consent to help prove the absence of consent.
46
e
practical consequence may be that the prosecution is denied the easier task of
proving the crime of sexual intercourse with a young person and the com-
plainant is forced into the witness box to prove absence of consent. However,
if there is a conviction for sexual intercourse with a young person in a case
where there is coercion, the question as to the appropriate punishment arises.
e conduct must be presumed to be consensual
47
and to punish a young
person for doing something that is commonplace among so many of their
peers seems unjust. Arguably too, criminalising the consensual sexual
behaviour of adolescents could be seen to be an infringement of their privacy
and autonomy. Even if one does not accept the sexual autonomy argument in
44
Model Criminal Code Ocers Committee, above n 15, 151.
45
J R Spencer, ‘e Sexual Oences Act 2003: (2) Child and Family Oences’ [2004] Criminal
Law Review 347, 354.
46
See, eg, Criminal Code (Tas) s 2A(2)(a). For the position in Victoria, see Simon Bronitt and
Bernadette McSherry, Principles of Criminal Law (Lawbook, 3
rd
ed, 2010) 639–40.
47
e rule in R v De Simoni (1981) 147 CLR 383 requires the sentencing judge to assume
free agreement.
2013] Setting the Boundaries of Child Sexual Assault 1019
relation to children, criminalisation remains an inappropriate way to attempt
to control consensual sexual behaviour between young people.
For those jurisdictions that do not have similar-age consent defences for
child sexual oences, introducing such a defence is likely to prove controver-
sial. It can be portrayed as an encouragement of sexual activity among young
people and as weakening the protection the law oers to children from abuse
and exploitation.
48
e argument that fundamental issues of the scope of the
criminal law should be reected in the substantive law and should not be le
to be remedied by prosecutorial discretion or the sentencing process is not
one that is likely to have popular appeal.
In summary, there are strong reasons in principle to narrow the scope of
child sexual assault oences by providing a similar-age consent defence. e
Tasmanian position, which, like the Canadian law, provides for a bigger age
dierence for older children than younger children, is appropriate. It ensures
that young people, in limited circumstances, are free to engage in sexual
activity without the risk of criminal prosecution and the adverse consequenc-
es of incurring a criminal conviction. It does not diminish the protection
provided by the law to vulnerable children and adolescents from predatory
sexual exploitation and abuse. eir protection from premature sexual activity
remains in cases where, because of the age dierence, it is appropriate that the
perpetrator’s behaviour be singled out from that of the victim by a prosecu-
tion. Despite prosecutorial discretion, in jurisdictions without age similarity
defences there are examples in the case law of what appear to be inappropriate
prosecutions.
49
For instance, the Western Australian Law Reform Commission in its Dis-
cussion Paper on the Community Protection (Oender Reporting) Act 2004
(WA), cites the following case example:
e oender pleaded guilty to four oences of indecent dealing of a child under
the age of 13 years. All the oences occurred during one incident that took
place at school. e oender was 15 years and 9 months of age and the com-
plainant was 12 years and 9 months (so there was a three year age disparity).
48
e response to the Model Criminal Code Ocers Committee’s recommendation for a
‘similarity in age’ defence was mainly negative: Model Criminal Code Ocers Committee,
above n 15, 151. See also David Brown et al, Criminal Laws: Materials and Commentary on
Criminal Law and Process of New South Wales (Federation Press, 5
th
ed, 2011) 738 for the
response to suggestions to include a similar-age defence of consent in New South Wales.
49
See Law Reform Commission of Western Australia, Community Protection Act (Final Report),
above n 43, 31; Law Reform Commission of Western Australia, Community Protection
(Oender Reporting) Act 2004, Discussion Paper No 101 (2011) 85–6.
1020 Melbourne University Law Review [Vol 36:1009
e oender asked the complainant to go into the girls toilets to ‘hook up for a
pash’. ey entered the toilets and started kissing. e oender touched the
complainant’s breast and the complainant masturbated the oender at his re-
quest. It was accepted by the state that the complainant was a willing partici-
pant (the complainant having indicated that she willingly participated in order
to make another person jealous).
e oender had no prior convictions. He was sentenced to a Youth Com-
munity Based Order for four months with a condition to attend psychological
counselling. As a result of this conviction the oender would be subject to the
CPOR Act for a period of seven-and-a-half years; he will be approximately 24
years of age before his reporting obligations cease. Because the oences in-
volved a child under the age of 13 years the Commissioner of Police has no dis-
cretion to suspend his reporting obligations. It was reported in the newspaper
that the parents of the complainant considered that it was ‘ridiculous’ for the
oender to be placed on the sex oender register.
50
While there will always be hard cases in which a prosecution appears to be
unjust, a relatively liberal similar-age consent defence regime ensures that
such cases are kept to a minimum. Questions remain as to setting the age
limits. To some extent all age limits are arbitrary, including the age below
which no defence of consent is available.is is 10 in the ACT but 12 in
Tasmania, Victoria and Canada. e age in Victoria was recently increased
from 10 to 12.
51
e primary reason for this was that it had the eect of
making oences involving 10- and 11-year-old children more serious by
including oences in relation to them within the 25-year maximum penalty
category. However, in recommending amending the age to 12 rather than 10,
the Sentencing Advisory Council had regard to the age that children have the
ability to consent to sexual penetration and the age that children are begin-
ning to have sexual intercourse.
52
Ten was regarded as too low because it did
not include vulnerable adolescents aged 10 and 11, and 12 was selected
because children under 12 generally do not become involved in consensual
sexual relationships with children close to their own age.
53
Any concerns
about denying a similar-age consent defence to children of 10 and 11 playing
50
See Law Reform Commission of Western Australia, Community Protection Act (Discussion
Paper), above n 49, 85 (citations omitted).
51
Crimes Legislation Amendment Act 2010 (Vic) s 3, amending Crimes Act 1958 (Vic)
ss 45(2)(a)–(c), 45(3)(a), 45(4).
52
Sentencing Advisory Council (Vic), Maximum Penalties for Sexual Penetration with a Child
under 16: Report (2009) 77 [7.21], 79 [7.27].
53
Ibid 76–9 [7.16]–[7.28].
2013] Setting the Boundaries of Child Sexual Assault 1021
‘rude games’ is probably answered by the fact that the ‘rude games’ scenario
tends to apply to children who are below the age of criminal responsibility.
B Restricting the Mistake as to Age Defence by a ‘No-Defence Age’
An aspect of the Tasmanian law that diers from other Australian jurisdic-
tions is the fact that the defence of a reasonable mistake as to age is available
to men (and women) of any age who have sex with a young person no matter
how great the disparity in age. So, in theory, a man of 50 can have sexual
intercourse with a girl of 12 or even younger and still claim the defence of
mistake as to age. Indeed, in the child prostitution case mentioned in the
introduction, one of the male clients who admitted to sex with the girl was
aged 49, and Martin, the one male who was convicted of having sex with her,
was 51 at the time.
54
is aspect of the case gave rise to some controversy. e
Director of Public Prosecution’s explanation for not prosecuting the men who
had admitted sexual intercourse with the girl, namely that there was no
reasonable prospect of conviction on the facts because of the availability of the
defence of mistake, was criticised in media reports of the case and in the
public commentary.
55
e Director’s response defending his decision was
convincing and was vindicated by the jury’s decision in Martin’s case. It was
argued that such a defence was inappropriate and that the girl’s clients should
not have been able to escape prosecution. is raises the question whether it is
appropriate to limit the defence of mistake by a no-defence age and whether
there are other limitations on the imposition of a no-defence age requirement.
A no-defence age for the crime of sexual intercourse with a young person
means that the oence is in eect one of absolute liability. e prosecution can
prove the oence by proving that the accused had sexual intercourse with a
young person who was under the no-defence age, say under the age of 12
(which is the median no-defence age in Australia). Neither a mistake as to age
nor consent is a defence. e argument in favour of absolute liability as to age
for this oence is that sexual abuse of children is so harmful and so abhorrent
that liability without proof of fault is justied.ose who engage in sexual
behaviour with young people take the risk that the young person is much
younger than they appear and cannot complain if they are mistaken about
54
Transcript of Proceedings (Sentence), R v Martin (Supreme Court of Tasmania, Porter J, 29
November 2011).
55
Sue Neales, ‘Girl-Sex Case Rethink Bid’, e Mercury (Hobart), 1 October 2010, 3; ‘DPP
Claries Facts in Child-Sex Case’, e Mercury (Hobart), 2 October 2010, 24; David Killick
and Zara Dawtrey, ‘Girl-Sex Case Outrage’, e Mercury (Hobart), 23 November 2011, 1.
1022 Melbourne University Law Review [Vol 36:1009
age. It is claimed that imposing liability without proof of fault will discourage
such risky behaviour and make it easier to hold perpetrators accountable.
Absolute liability for sexual intercourse with a person under the age of 13 was
supported by Baroness Hale in R v G,
56
a controversial English case where a
15-year-old youth was convicted of ‘rape of a child under 13’ aer he had
sexual intercourse with a girl of 12 who admitted she had told him she was 14.
Baroness Hale argued:
Every male has a choice about where he puts his penis. It may be dicult for
him to restrain himself when aroused but he has a choice. ere is nothing un-
just or irrational about a law which says that if he chooses to put his penis in-
side a child who turns out to be under 13 he has committed an oence (alt-
hough the state of his mind may again be relevant to sentence). He also com-
mits an oence if he behaves in the same way towards a child of 13 but under
16, albeit only if he does not reasonably believe that the child is 16 or over. So
in principle sex with a child under 16 is not allowed. When the child is under
13, three years younger than that, he takes the risk that she may be younger
than he thinks she is. e object is to make him take responsibility for what he
chooses to do with what is capable of being, not only an instrument of great
pleasure, but also a weapon of great danger.
57
Before these arguments in favour of a no-defence age are evaluated, the
traditional criminal law arguments against imposing criminal liability without
proof of fault will be discussed in the context of imposing absolute liability for
sexual intercourse with a young person below the no-defence age. It is
generally conceded that absolute liability may be acceptable for regulatory
oences but it is argued that it is quite inappropriate and unjust for an
imprisonable oence, particularly one which attracts such grave public
opprobrium as sexual penetration of a child.
58
Arguments against absolute
liability for such oences have also been placed in a human rights context by
calling in aid basic human rights principles.
1 A No-Defence Age Is Contrary to the Fundamental Presumption of Mens Rea
At a theoretical level, contemporary criminal law strongly favours a subjective
approach to criminal liability. In the context of the oence of sexual inter-
56
[2009] 1 AC 92.
57
Ibid 108 [46].
58
Andrew Ashworth, ‘Should Strict Criminal Liability Be Removed from All Imprisonable
Oences?’ (2010) 45 Irish Jurist 1. See also Jeremy Gans, Modern Criminal Law of Australia
(Cambridge University Press, 2012) 143.
2013] Setting the Boundaries of Child Sexual Assault 1023
course with a young person, a subjective approach demands proof by the
prosecution that the accused knew the young person was underage or was at
least reckless as to that fact.ere is strong judicial support for a subjective
approach to criminal responsibility, which is embodied in the common law
presumption that mens rea is an essential element of every criminal oence.
is is exemplied in Australia by the decision in He Kaw Teh ve Queen
(‘He Kaw Teh’),
59
where the High Court gave new life to the presumption of
mens rea, insisting that the presumption remained a strong one which could
only be displaced by the express words of the relevant oence provision or the
subject matter of the oence.
In the United Kingdom, the inuence of subjectivism has strongly
emerged in interpreting statutory child sexual oences. In B v Director of
Public Prosecutions,
60
the House of Lords read the requirement of knowledge
of the child’s age into the oence of indecency with a child under 14. It did the
same in relation to the crime of indecent assault of a girl under 16 in R v K,
where Lord Steyn described the presumption of mens rea as a ‘constitutional
principle’ that is not easily displaced by the language of the statute.
61
In CC v
Ireland, Denham J of the Supreme Court of Ireland referred to the presump-
tion as the ‘silken thread in the fabric of the legal system ensuring a just
process’ in a case where he found the presumption of mens rea was not ousted
for the crime of unlawful carnal knowledge of a female under the age of 15.
62
e presumption has long been regarded as a fundamental principle of justice.
To quote a frequently quoted passage from Lamer J’s judgment in the Canadi-
an Supreme Court’s decision in Re BC Motor Vehicle Act:
It has from time immemorial been part of our system of laws that the innocent
not be punished. is principle has long been recognised as an essential ele-
ment of a system for the administration of justice which is founded upon a be-
lief in the dignity and worth of the human person and on the rule of law. It is so
old that its rst enunciation was in Latin actus non facit reum nisi mens sit rea.
63
59
(1985) 157 CLR 523.
60
[2000] 2 AC 428.
61
[2002] 1 AC 462, 477.
62
[2005] 4 IR 1, 25 [40].
63
[1985] 2 SCR 486, 513 (Lamer J for Dickson CJ, Beetz, Chouinard, Lamer and Le Dain JJ),
quoted in R v Stevens [1988] 1 SCR 1153, 1175 (Wilson J for Lamer, Wilson and L’Heureux-
Dubé JJ) and R v Hess [1990] 2 SCR 906, 915 (Wilson J for Lamer CJ, Wilson, La Forest and
L’Heureux-Dubé JJ).
1024 Melbourne University Law Review [Vol 36:1009
Relying upon H L A Hart and Joseph Raz, Ashworth has explained mens
rea’s foundational concepts of dignity and the rule of law. He states that the
rule of law or respect for human dignity and autonomy argument posits that
individuals should not be exposed to conviction if they have not adverted to
the wrongness of what they are doing because to do so constitutes contempt
for the value of individual autonomy which the law should respect.
64
is is
linked with values of legality and the rule of law by the claim that mens rea
enhances these values ‘by reassuring citizens that they will be liable to
conviction, and to the exercise of state coercion against them, only if they
knowingly cause or risk causing prohibited harm.’
65
Ashworth also uses a
censure-based argument to support the importance of the principle of mens
rea. is asserts that a requirement of fault should be a precondition of the
public condemnation involved in conviction and liability to state punish-
ment.
66
In summary:
Either separately or in combination, the rule of law and censure-based argu-
ments provide convincing reasons for regarding strict liability as wrong in prin-
ciple. e rule of law rationale links with the criminal law’s function of guiding
behaviour and the censure-based rationale links with the criminal conviction’s
function of expressing ocial censure.
67
As a principle of statutory interpretation, the presumption of mens rea
may be rebutted by the words of the statute, either expressly or by necessary
implication. ‘Necessary implication’ leaves room for argument and depends
on ‘the nature of the oence, the mischief sought to be prevented and any
other circumstances which may assist in determining what intention is
properly to be attributed to Parliament when creating the oence.’
68
Whether
putting the defendant under a less protective form of liability would assist in
the enforcement of the oence was listed by Gibbs CJ in He Kaw Teh as a
major interpretive consideration.
69
In CTM v e Queen
70
the High Court
took a somewhat dierent approach when interpreting the oence of sexual
intercourse with a person aged between 14 and 16 contrary to the Crimes Act
64
Ashworth, ‘Strict Criminal Liability’, above n 58, 5–6.
65
Andrew Ashworth, Principles of Criminal Law (Oxford University Press, 6
th
ed, 2009) 155.
66
Ibid 6–7, 155.
67
Ashworth, ‘Strict Criminal Liability’, above n 58, 7. Note the term ‘strict liability’ is used in
England to mean what would be called absolute liability in Australia and Canada.
68
B v DPP [2000] 2 AC 428, 464 (Lord Nicholls).
69
(1985) 157 CLR 523, 529–30.
70
(2008) 236 CLR 440.
2013] Setting the Boundaries of Child Sexual Assault 1025
1900 (NSW) s 66C(3). Rather than starting with the presumption of mens rea,
in their joint judgment Gleeson CJ, Gummow, Crennan and Kiefel JJ began
with the principle in R v Tolson that ‘at common law an honest and reasonable
belief in the existence of circumstances, which, if true, would make the act for
which a prisoner is indicted an innocent act has always been held to be a good
defence.’
71
Construing the section in light of this principle, the joint judgment
held that an honest and reasonable belief that the other party to the sexual
activity is above the age of 16 years is an answer to a charge under s 66C(3).
72
Parliament had failed to abrogate that principle by express language or
necessary implication. Amendments that included removing the express
statutory defence of mistake as to age for the crime of sexual intercourse with
a young person between the ages of 10 and 16 where the child to whom the
charge related consented and was of or above the age of 14 did not provide the
necessary implication.
73
In the absence of ‘the clearest and most indisputable
evidence’
74
the common law principle was not displaced. e decision has
been criticised for its failure to apply the common law presumption of mens
rea and has been said to be unjustiable by reference to criminal law theory
and the common law. Hodson argues the High Court should have started with
the fundamental presumption of mens rea and found that the oence required
proof of knowledge that the young person was under the age of 16.
75
In Code jurisdictions such as Tasmania, the common law presumption of
mens rea has no application as a principle of interpretation.
76
Nevertheless the
general principle that there should be no liability without fault remains
relevant in considering whether the general defence of honest and reasonable
mistake is open.
77
And as an aspirational principle, the presumption of mens
rea is relevant when criminal oences are being enacted — it weighs heavily
against creating oences of absolute liability.
71
Ibid 445 [3], quoting R v Tolson (1889) 23 QBD 168, 181.
72
CTM v e Queen (2008) 236 CLR 440, 456 [35].
73
Ibid 452–6 [22]–[35].
74
Ibid 446 [4], quoting R v Tol so n (1889) 23 QBD 168, 182.
75
Susannah Hodson, ‘CTM v e Queen: A Challenge to the Fundamental Presumption of
Mens Rea’ (2010) 34 Criminal Law Journal 187.
76
Bennett v e Queen [1991] Tas R 11, 18 (Green CJ).
77
See, eg, Criminal Code (Tas) s 14.
1026 Melbourne University Law Review [Vol 36:1009
2 Is a No-Defence Age an Infringement of Human Rights?
Victoria and the ACT are the only Australian jurisdictions with human rights
charters.
78
is does not mean human rights are irrelevant in evaluating
legislative provisions in other Australian jurisdictions. On the contrary,
compliance with human rights is a useful evaluative measure and law reform
proposals should aspire to be human rights compliant.
Absolute liability with respect to the element of age of the complainant in
child sexual oences has been challenged on human rights grounds in a
number of common law jurisdictions that have human rights legislation. In
Canada the crime of sexual intercourse with a young person under the age of
14 expressly provided that neither consent nor mistake as to age was a
defence. It was challenged in R v Hess
79
on the grounds that it breached the
right to liberty in s 7 of the Canada Act 1982 (UK) c 11, sch B pt I (‘Canadian
Charter of Rights and Freedoms’). e statute clearly demonstrated a legislative
decision to remove the mens rea requirement.
80
However, the Canadian
courts have determined that the right to liberty in s 7 of the Charter has
elevated the requirement of mens rea from a presumption of statutory
interpretation to a constitutionally mandated element of a criminal oence.
e right to liberty in s 7 ‘prohibits the existence of oences that are punisha-
ble by imprisonment and that do not allow the accused as a minimum a due
diligence defence’.
81
As decided by the majority in R v Hess, the infringement
of the right to liberty (entailed by making liability absolute with respect to the
age of the young person for the crime of sexual intercourse with a young
person under the age of 14) was not saved by s 1 of the Charter as a reasonable
and justiable limit on that right.
82
Absolute liability for the crime of sexual intercourse with a young person
has also been successfully challenged in Ireland. In CC v Ireland a 19-year-old
was charged with the crime of having carnal knowledge of a girl under 15
contrary to s 1(1) of the Criminal Law (Amendment) Act 1935 (Ireland).
83
e
defendant admitted consensual sexual intercourse with the girl and said that
78
Charter of Human Rights and Responsibilities Act 2006 (Vic); Human Rights Act 2004 (ACT).
79
[1990] 2 SCR 906.
80
Ibid 913 (Wilson J for Lamer CJ, Wilson, La Forest and L’Heureux-Dubé JJ).
81
Ibid 916, quoting R v Stevens [1988] 1 SCR 1153, 1177 (Wilson J for Lamer, Wilson and
L’Heureux-Dubé JJ). See also R v Vaillancourt [1987] 2 SCR 636, 652 (Lamer J for Dickson CJ,
Estey, Lamer and Wilson JJ); Re BC Motor Vehicle Act [1985] 2 SCR 486, 521 (Lamer J for
Dickson CJ, Beetz, Chouinard, Lamer and Le Dain JJ).
82
R v Hess [1990] 2 SCR 906, 919–26 (Wilson J).
83
[2006] 4 IR 1.
2013] Setting the Boundaries of Child Sexual Assault 1027
she told him she was 16 and that she had initiated the contact between them
aer their rst (non-sexual) encounter. e Supreme Court of Ireland held
(by a majority) that the presumption of mens rea had been rebutted by
necessary implication from its legislative antecedents and a mistaken belief as
to the complainant’s age was not a defence.
84
Having failed on the statutory
interpretation argument, the constitutional point was argued by the applicant
and it was held that by removing the requirement of mens rea in relation to
age, the oence was unconstitutional because it was inconsistent with the
applicant’s personal rights to liberty and good name in art 40 of the Constitu-
tion of Ireland. In Hardiman J’s words, quoting in part those of Wilson J in
R v Hess:
It appears to us that to criminalise in a serious way a person who is mentally
innocent is indeed ‘to inict a grave injury on that person’s dignity and sense of
worth’ and to treat him as ‘little more than a means to an end’ … It appears to
us that this, in turn, constitutes a failure by the State in its laws to respect, de-
fend and vindicate the rights to liberty and to good name of the person so
treated, contrary to the State’s obligations under Article 40 of the Constitution.
85
In England, the Convention for the Protection of Human Rights and Free-
doms (‘European Convention’)
86
has proved less useful in challenging oences
of absolute liability where Parliament has made its intention plain. In G v
United Kingdom
87
one of the principal arguments was that to impose absolute
liability as to age for the crime of rape of a child under the age of 13 in s 5 of
the Sexual Oences Act 2003 (UK) c 42 was contrary to the right to a fair trial
and presumption of innocence in art 6 of the European Convention. e
European Court of Human Rights, endorsing the decision of the House of
Lords, held that Parliament’s decision not to make a defence available based
84
Ibid. Justice Denham dissented. He held that the requirement of mens rea was not expressly
excluded by the words of the statute nor by necessary implication. e legislative history did
not make it compellingly clear that the fundamental ‘constitutional concept’ of mens rea was
ousted and that a ‘reasonable belief’ as to the age of the complainant was a defence: at 27 [49],
34 [65]. In relation to PG v Ireland, a case heard at the same time, it was unanimously held
that for the common law oence of sexual assault of a person under the age of 15 the pre-
sumption of mens rea applies and mistake as to age, a ‘genuine’ mistake, ‘without it having to
be objectively reasonable’, was a defence: at 49 [121] (Geoghegan J).
85
CC v Ireland [2006] 4 IR 1, 78–9 [44], quoting R v Hess [1990] 2 SCR 906, 918.
86
Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 Sep-
tember 1953).
87
[2009] 1 AC 92. See also Andrew Ashworth, ‘Human Rights: G v United Kingdom’ [2012]
Criminal Law Review 46.
1028 Melbourne University Law Review [Vol 36:1009
on a reasonable belief that the complainant was aged 13 or over did not give
rise to any issue under art 6 because it was not the court’s role under arts 6(1)
or (2) to
dictate the content of domestic criminal law, including whether or not a
blameworthy state of mind should be one of the elements of the oence or
whether there should be any particular defence available to the accused …
88
3 Is a No-Defence Age a Deterrent?
Despite strong judicial endorsement of the importance of mens rea as a
foundational principle of justice, there is some support for making exceptions
even in the case of oences that are seen as truly criminal, such as child sexual
oences. Deterrence is one argument that is used to justify such exceptional
criminal liability. Despite the injustice of a provision with the potential to
punish an accused in the absence of a guilty mind, it is justied by the greater
good of protecting young people from premature sexual activity by deterring
it. It is argued that if criminal liability for sexual intercourse with a young
person is absolute, fear of being wrong about a young person’s age will lead
some men who are contemplating having sex with a young person to desist.
is assumes that the age of a person with whom one is contemplating sex is a
matter to which one addresses attention and that to avoid the risk of convic-
tion, one would refrain from having sex with a person unless one was certain
that they were over the age of consent. In R v Hess, McLachlin J, in her
dissenting judgment, was convinced of the deterrent eect of absolute liability
in this context:
e defence of due diligence would require him to make enquiries to avoid
conviction, but still leaves open the possibility that the girl may lie as to her age
or even produce false identication, not an uncommon practice in the world of
juvenile prostitution.
e imposition of [absolute] liability eliminates these defences. In doing so,
it eectively puts men who are contemplating intercourse with a girl who might
be under fourteen years of age on guard.ey know that if they have inter-
course without being certain of the girl’s age, they run the risk of conviction,
and many conclude that they will not take the chance. at wisdom forms part
of the substratum of consciousness with which young men grow up, as exem-
88
G v United Kingdom (European Court of Human Rights, Chamber, Application No 37334/08,
30 August 2011) [27] (citations omitted).
2013] Setting the Boundaries of Child Sexual Assault 1029
plied by terms such as ‘jail-bait’. ere can be no question but that the imposi-
tion of absolute liability in s 146(1) has an additional deterrent eect.
89
Justice Wilson, in the same case, was not persuaded that absolute liability
would have a greater deterrent eect than strict liability:
Where one is dealing with the potential for life imprisonment it is not good
enough, in my view, to rely on intuition and speculation about the potential de-
terrent eect of an absolute liability oence. We need concrete and persuasive
evidence to support the argument.
90
Nor was Hardiman J in CC v Ireland convinced:
e measure, or its predecessors, is thought to be eective because its in ter-
rorem eect has been so successful that it has entered ‘the substratum of con-
sciousness with which young men grow up’.
e psychology of this is debatable. Certainly it is also wholly unsupported
by evidence, as far as one can tell in the Canadian case and certainly in
this case.
91
Accepting a deterrent eect assumes one will consider the risks and weigh
up the risk of being wrong and of being detected and punished. Whether
these risks are indeed in the substratum of consciousness is speculative. As
well as arguing that the increased deterrent eect of absolute liability com-
pared with an oence which requires proof of negligence is speculative and
unsupported by any evidence, Ashworth argues there are principled argu-
ments against deterrence even if it were established that dispensing with fault
would have a greater deterrent eect. Making a scapegoat of a person in order
to discourage others is unfair.
92
As Wilson J in R v Hess put it, ‘[i]t is to use the
innocent as a means to an end.’
93
4 Making Prosecution Easier
One of the arguments in favour of absolute liability is that it makes it easier to
hold oenders accountable. e defence of mistake as to age is ‘all too easy to
claim’ when no such mistake existed and ‘some men specialise in the targeting
89
R v Hess [1990] 2 SCR 906, 950.
90
Ibid 923.
91
[2006] 4 IR 1, 84 [59]–[60], quoting R v Hess [1990] 2 SCR 906, 950 (McLachlin J).
92
Ashworth, ‘Strict Criminal Liability’, above n 58, 12–13.
93
[1990] 2 SCR 906, 924.
1030 Melbourne University Law Review [Vol 36:1009
of young girls’.
94
Moreover, because age is dicult to ascertain, a belief that
the young person was much older can be a reasonable claim.
95
is kind of
argument was questioned in the following much cited remarks of Dixon CJ in
omas v e King:
e truth appears to be that a reluctance on the part of courts has repeatedly
appeared to allow a prisoner to avail himself of a defence depending simply on
his own state of knowledge and belief. e reluctance is due in great measure, if
not entirely, to a mistrust of the tribunal of fact — the jury. rough a feeling
that, if the law allows such a defence to be submitted to the jury, prisoners may
too readily escape by deposing to conditions of mind and describing sources of
information, matters upon which their evidence cannot be adequately tested
and contradicted, judges have been misled into a failure steadily to adhere to
principle. It is not dicult to understand such tendencies, but a lack of con-
dence in the ability of a tribunal correctly to estimate evidence of states of mind
and the like can never be sucient ground for excluding from inquiry the most
fundamental element in a rational and humane criminal code.
96
e argument can also be countered by making it less easy to raise the defence
of mistake by placing some weight on the defendant to demonstrate that he
took sensible precautions. Qualications on the defence of mistake will be
considered below.
5 e ‘in Ice Principle’
As Baroness Hale argues in the passage quoted above from R v G,
97
a person
who has sex with a young person takes the risk that she is younger than he
thinks she is. Similarly, in Wisconsin v Jadowski,
98
Abrahamson CJ defended
absolute liability for ‘statutory rape’ on the grounds that the statutory prohibi-
tion in such cases is not hidden, and the ‘defendant is warned to steer well
clear of the core of the oense’. Underlying this point is the assumption that
being involved in sexual activity with a young person is morally dubious and
attended with well-known risks and people cannot really complain when the
risk materialises. is has sometimes been referred to as the ‘thin ice princi-
94
Home Oce (UK), ‘Setting the Boundaries: Reforming the Law on Sex Oences’ (Consulta-
tion Paper, Home Oce, July 2000) vol 1 46–7 [3.6.12].
95
Wisconsin v Jadowski, 680 NW 2d 810, 817 [25] (Abrahamson CJ) (Wis, 2004).
96
(1937) 59 CLR 279, 309.
97
[2009] 1 AC 92, 108 [46].
98
680 NW 2d 810, 821 [44] (Wis, 2004), quoting Chief Judge Posner in United States v Wilson,
159 F 3d 280, 296 (7
th
Cir, 1998) (dissenting).
2013] Setting the Boundaries of Child Sexual Assault 1031
ple’: ‘those who skate on thin ice can hardly expect tond a sign which will
denote the precise spot where he will fall in’.
99
Ashworth rejects the thin ice
argument in the context of sexual penetration of a young person. His reason-
ing is that though we may strongly disapprove of older men having sex with
17-year-olds, it is lawful. And it is particularly harsh to criminalise someone
for doing something they reasonably believed to be lawful:
the legislature has not moved to criminalise older men who have consensual
sex with 17-year-olds (however much some of us may deprecate that ac-
tivity). … If, and in so far as, the law species the age of 17 as the dividing line,
any moral disapproval that some people may have for an older man who wants
to have sex with a particular 17-year-old should not be allowed to convert a
reasonable belief into an unjustied belief sucient for criminalisation.
100
6 Absolute Liability Is Justied by the Seriousness of the Harm
Irrespective of deterrence and proof that absolute liability will increase the
protection the law oers to young people from sexual exploitation, it can be
argued that sexual conduct with a young person is so harmful and so repre-
hensible that society should condemn it without proof of fault to reinforce
society’s condemnation of such conduct. For this argument, a no-defence age
is supported without reliance on its preventive ecacy. But as Ashworth
points out, the seriousness of the oence cuts both ways: ‘e harm is very
serious for the victim, but to register a conviction without culpability as to this
material element is also a great injustice for the defendant.’
101
He argues that
conviction is an act of public censure of the individual, that this should not be
imposed in the absence of fault, and it is not a deciency that can be cured by
the possibility of favourable treatment at the sentencing stage (or by police or
prosecutorial discretion).
102
at prosecutorial or judicial discretion can counter any chance of injus-
tice in individual cases was also refuted by Wilson J in R v Hess:
one cannot leave questions of mental innocence to the sentencing process. e
legislature must take into account the implications of the distinction between
the mentally innocent and the mentally guilty when draing legislation. Any
aws in the provision cannot be justied by arguments that ask us to have faith
99
Ashworth, ‘Strict Criminal Liability’, above n 58, 13, quoting Knuller v DPP [1973] AC 435,
463 (Lord Morris).
100
Ashworth, ‘Strict Criminal Liability’, above n 58.
101
Ibid 14.
102
Ibid 15.
1032 Melbourne University Law Review [Vol 36:1009
that the prosecutor and judge will take these aws into account when deciding
how the accused will be punished. Reliance on prosecutorial or judicial discre-
tion to mitigate the harshness of an unjust law will provide little comfort to the
mentally innocent and cannot, in my view, serve to justify a fundamentally un-
sound provision.
103
C Other Restrictions on the Mistake as to Age Defence
So far it has been argued that a no-defence age for child sexual oences such
as sexual intercourse with a young person is not defensible. It is both contrary
to fundamental principle and unjust to make liability absolute for such a
serious oence. Serious harm is undoubtedly caused by these oences and
children need to be protected from them, but arguments that absolute liability
when the person the subject of the charge is under the no-defence age will
have a greater deterrent eect than strict liability is merely speculative. e
suggestion that injustice is likely because ‘a child under 13 [is] not readily
mistaken for one over 16’,
104
is challenged by the Tasmanian case that gave
rise to the review of defences to sexual oences against young people in that
State. e child in that case was 12 but advertisements for her services
described her as ‘New in town, Angela 18 years old’.
105
e Director of Public
Prosecutions’ published memorandum, which explained his reasons for not
prosecuting those clients who admitted to having sex with the girl, suggested
that the ‘complainant does look much older than her 12 years’.
106
is is
conrmed by the judge’s comments in imposing sentence on the one client
who was prosecuted and convicted for having sexual intercourse with the girl
— he accepted that on the evidence at trial, ‘reasonable grounds existed for
thinking that the complainant was about 15, possibly 16 years old’.
107
Rather than imposing absolute liability where the child is under 10, 12 or
13, a better approach may be to focus on narrowing the defence of mistake. It
seems to be common for young people to lie about their age in order to
103
[1990] 2 SCR 906, 924.
104
Home Oce (UK), above n 94, 45 [3.6.7].
105
See Transcript of Proceedings (Sentence), R v Martin (Supreme Court of Tasmania, Porter J,
29 November 2011). See also Tasmania Law Reform Institute, Sexual Oences against Young
People, Issues Paper No 17 (2012) 3 [1.1.9].
106
‘DPP Claries Facts in Child-Sex Case’, e Mercury (Hobart), 2 October 2010, 24.
107
Transcript of Proceedings (Sentence), R v Martin (Supreme Court of Tasmania, Porter J, 29
November 2011). e defendant in this case had a much better opportunity to clearly observe
the girl than the men who were not prosecuted — they had sex with her in a dimly lit room.
2013] Setting the Boundaries of Child Sexual Assault 1033
engage in things that the law proscribes. And in the context of underage
drinking and juvenile prostitution, false identication is not uncommon.
Given this reality, there are grounds for arguing that some limits on the
defence of mistake as to age may be justied. While some would argue that
fundamental principle requires that a mistaken belief need only be honest, in
the context of child sexual oences, such a defence would not provide
sucient protection for children. It is too easy to claim an honest mistake
when no such mistake existed. Nor would such an exemption send the right
message to the community about the need to be vigilant about protecting
children from sexual abuse and exploitation. Code jurisdictions are much
more comfortable about substituting the defence of reasonable mistake for
knowledge requirements, as their rape laws indicate.
108
It is accepted that
there is nothing unjust in requiring a person to take reasonable steps to ensure
that their sexual partner is consenting.
109
1 Age Restrictions on Perpetrators
One possibility is to restrict the upper age of a defendant who can argue a
mistake as to age on the grounds that a greater age disparity is an indication of
exploitation. is is the position in Western Australia — the defence is
restricted to perpetrators who are no more than three years older than the
complainant, who must be at least 13.
110
Other jurisdictions have had age-
restricted mistake as to age defences in the past. For example, in the United
Kingdom, what was known as the ‘young man’s defence’ to the crime of
unlawful carnal knowledge of a girl of or over 13 and under 16 was intro-
duced in 1922 for defendants who were under the age of 24 and charged for
the rst time.
111
A similar defence found its way into the Tasmanian Criminal
Code, restricted, however, to an accused under the age of 21,
112
and the Crimes
108
Bronitt and McSherry, above n 46, 656.
109
Ibid 658–62.
110
Criminal Code (WA) s 321(9).
111
Criminal Law Amendment Act 1922, 13 Geo 5, c 2. See R v K [2002] 1 AC 462, 469 [10] (Lord
Bingham); Home Oce (UK), above n 94, 46 [3.6.9]. e Sexual Oences Act 2003 (UK)
c 42, s 9 replaced the ‘young man’s defence’ with a generally available defence of honest and
reasonable mistake as to age for the oence of sexual activity with a child over the age of 13
and under the age of 16.
112
Criminal Code (Tas) s 124(3)(a). is was further restricted to an accused under the age of 18
when the age of consent was lowered from 18 to 17 by Criminal Code Act 1974 (Tas) s 2. e
age restriction was omitted from the redraed oence in the amendments.
1034 Melbourne University Law Review [Vol 36:1009
Act 1961 (NZ) had an age-restricted mistake as to age defence, which has been
repealed.
113
ere are strong grounds for rejecting an age-restricted mistake as to age
defence. e most convincing reasons relate to the objections to absolute
liability discussed above because it means, in eect, that the oence of sexual
intercourse with a young person is an absolute liability oence for all defend-
ants who are over the age limit. Other criticisms of age restrictions on the
defence include that it is arbitrary and has the eect of denying the defence to
a person who is one day over the age limit and that it is unfair because
mistakes are no less likely to be made by older men. e ability to dierentiate
age is said to be likely to diminish with age rather than increase.
114
e
counter-argument is that increased age requires greater responsibility and on
this basis a defence limited by age can be justied. However, I would argue
that considerations such as age disparity between the oender and the
complainant would be better accommodated by a generally available mistake
as to age defence with a reasonable steps requirement than by an age-limited
mistake defence.
2 Adding a Requirement to Take Reasonable Steps
Both Canada and New Zealand have introduced a reasonable steps require-
ment to the defence of mistake. In Canada, the defence of mistake is not
available for child-specic sex oences ‘unless the accused took all reasonable
steps to ascertain the age of the complainant.’
115
In applying these provisions,
it has been held that the accused must have made an earnest inquiry or there
must be some compelling factor that obviates the need for such an inquiry.
e accused must show ‘what steps he took and that these steps were all that
could have been reasonably required of him in the circumstances.’
116
What is
reasonable will depend on the circumstances, and in some cases a visual
observation may suce.
117
However,
113
Crimes Act 1961 (NZ) s 134, as amended by Crimes Amendment Act 2005 (NZ) (2005) s 7.
114
New Zealand, Parliamentary Debates, House of Representatives, 12 April 2005, 20 016 (Marc
Alexander); Criminal Law Revision Committee, ‘Fieenth Report: Sexual Oences’ (Parlia-
mentary Paper 9213, Home Department, April 1984) 46.
115
Criminal Code (Canada) s 150.1(4). e onus is the prosecution to prove the accused did not
take reasonable steps or did not have an honest belief: R v LTP (1997) 113 CCC (3d) 42 [19]
(Finch JA for Lambert, Esson and Finch JJA).
116
R v Osborne (1992) 17 CR (4
th
) 350 [62] (Goodridge CJN for Goodridge CJN, O’Neill and
Steele JJA).
117
R v LTP (1997) 113 CCC (3d) 42 [20] (Finch JA for Lambert, Esson and Finch JJA).
2013] Setting the Boundaries of Child Sexual Assault 1035
the dierence in ages between the accused and the complainant [is] relevant in
deciding what constitutes reasonable steps, and … the greater the disparity in
ages between the two parties, the greater the level of inquiry to be called for on
the accused’s part.
118
Following amendments to the Crimes Act 1961 (NZ) in 2005, it is only a
defence to a charge of sexual conduct with a person under the age of 16 if the
accused can prove that he or she ‘had taken reasonable steps to nd out
whether the young person was of or over the age of 16 years’ in addition to
proving that he or she believed on reasonable grounds that the young person
was of or over 16.
119
An advantage of the reasonable steps requirement is that it puts a greater
onus on the defendant to ascertain the child’s age than the defence of honest
and reasonable mistake as to age. What constitutes reasonable steps will
depend on the circumstances. In the context of child prostitution it should not
be possible to say, for example, that ‘I thought she was 18 because she was
advertised as being 18, she looked much older than her 12 years and it was
dark and hard to see clearly’.
120
In this context, misrepresentation of age and
even false identication is common. Considerable care is required to ensure
that sexual services are being provided by an adult. In other situations, such as
a meeting in a bar or nightclub, presence in licensed premises should not be
enough to form the basis for the defence given the frequency with which
under-age teenagers are illegally present. Arguably, the greater the age
disparity, the greater the care that is needed, given that it is likely that deter-
mining age diminishes with maturity. And what are reasonable steps could
also depend on the sexual conduct proposed; less may be required for sexual
acts falling short of penetration.
IV C
ONCLUSION
In most respects, the Tasmanian law in relation to sexual intercourse with a
young person achieves a reasonable balance between the need to protect
118
Ibid [18], referring to R v RAK (1996) 106 CCC (3d) 93; R v RSM (1991) 69 CCC (3d) 223.
119
Crimes Act 1961 (NZ) s 134A(1), as amended by Crimes Amendment Act 2005 (NZ) s 7.
Similar qualications to the defence of mistake as to age are sometimes found in oences
dealing with child prostitution: see, eg, Sex Industry Oences Act 2005 (Tas) s 9(4).
120
ese points formed the reasonable grounds for the claimed mistakes as to age in the
Tasmanian child prostitute case: see Transcript of Proceedings (Sentence), R v Martin (Su-
preme Court of Tasmania, Porter J, 29 November 2011); Tasmania Law Reform Institute,
Sexual Oences against Young People (Final Report), above n 1, 59–60 [4.4.10].
1036 Melbourne University Law Review [Vol 36:1009
young people and the need for criminal laws that are fair and just. One of the
problems with child sex oence laws is that they over-criminalise by making
sexual experimentation and peer relationships between adolescents and
teenagers criminal. e focus in this article on sexual penetration in the
discussion of the current law obscures the fact that the law also proscribes less
intrusive sexual acts such as sexual touching, a point that strengthens the
argument as to over-criminalisation. Our child sex oence laws put young
people at risk of prosecution and conviction, and make them subject to
mandatory inclusion on sex oence registers for peer sexual conduct. By
providing reasonably generous similar-age consent defences, the Tasmanian
law avoids this without diminishing the protection provided to children.
Criticisms of the Tasmanian law have been reported in the media because
the absence of a no-defence age allows an accused to rely upon the defence of
mistake as to age irrespective of the age of the child. It is said this ‘loophole’
fails to make those who have sex with the very young accountable.
121
In this
article it has been argued that there is no evidence that a no-defence age will
increase the level of protection provided to young people from sexual abuse,
and that to create an oence that makes a defendant liable to conviction for an
imprisonable oence in the absence of fault is grossly unfair. Rather than
introducing a no-defence age, a better approach would be to adopt the
Canadian and New Zealand position and tighten the defence of honest and
reasonable mistake by adding a reasonable steps requirement. With this
addition, the Tasmanian defences of consent and mistake as to age provide a
good model for the rest of Australia for the crime of sexual penetration of a
young person and other child sexual assault oences.
121
Tasmania L aw Reform Institute, Sexual Oences against Young People (Final Report), above
n 1, 29 [3.1.1].