The article below was written for the special 2016 Children Rights Edition of the HRLC Monthly Bulletin, Rights Agenda, developed in collaboration with the National Children’s and Youth Law Centre, King & Wood Mallesons and the Human Rights Law Centre.
DISCLAIMER: Please note that material in this Bulletin (Material) is intended to contain matters which may be of interest. The Material is not, and is not intended to be, legal advice. The Material may be updated and amended from time to time. We endeavour to take care in compiling the Material; however the Material may not reflect the most recent developments. The Material represents the views and opinions of the individual authors and the Material does not represent the views of King & Wood Mallesons, NCYLC or the HLRC or the views of King & Wood Mallesons’ clients.
‘[I]t strikes me as fundamentally irrational to state that adolescents do not have the capacity to make choices about their sexual activity, yet in the same breath to contend that they have the capacity to be held criminally liable for such choices.’ - Teddy Bear Clinic for Abused Children v Minister for Justice and Constitutional Development [2013] ZACC 35 (Teddy Bear case), 73 [79] (Khampepe J)
In Australia, consensual sexual activity between children is treated differently by the criminal law in each state and territory. Australia, having ratified the UN Convention on the Rights of the Child (CRC), has a duty to ensure that the rights of children are protected. In this article, we suggest that most legislative approaches to consensual sexual activity between minors in Australia are, on balance, counter-productive and infringe the rights of the children they seek to protect. The jurisprudence of the Constitutional Court of South Africa provides a starting point for our analysis and a strong example of a rights-focused analysis of the issues.
The South African experience
The 2013 decision of the Constitutional Court of South Africa in the Teddy Bear case involved a challenge to laws imposing criminal liability for engaging in consensual sexual activities with children between the ages of 12 and 16 to the extent that those laws applied to criminalise consensual sexual activities between children.
To the extent that the laws exposed children under the age of 16 to criminal liability, the nine members of the Court unanimously found that:
a) the rights of children to their inherent dignity and privacy were infringed;
b) the existence of the laws was not in the best interests of children; and
c) far from generating any benefit which justified these infringements, the impugned laws actively created additional harm.
As such, the laws were found to be inconsistent with the South African Constitution to the extent that they imposed criminal liability on children under the age of 16 for engaging in consensual sexual acts with another child aged between 12 and 16.
Below, we consider how the reasoning of the Court in the Teddy Bear case can be applied to the CRC and the Australian context.
The Australian legal framework
In Australia, laws criminalising consensual criminal activity between children differ significantly between the various states and territories. Although not exhaustive, the following table outlines some of the key offences operating to (potentially) criminalise consensual sexual activities between children.
Jurisdiction
Age of Consent
Offences
Relevant defences
New South Wales
16
Sexual intercourse – child between 10 and 16;
Act of indecency;
Indecent assault.
None.
Note that consent of the alleged victim is no defence to these charges where the alleged victim was under the age of 16 years at the relevant time.
Tasmania
17
Sexual intercourse with young person;
Indecent act with or directed at a young person under the age of 17 years.
Where the alleged victim was:
of or above the age of 15 and the defendant was not more than 5 years older; or
of or above the age of 12 and the defendant was not more than 3 years older.
Victoria
16
Sexual penetration of child under the age of 16;
Indecent act with child under the age of 16.
If the alleged victim was aged 12 or over and:
the defendant believed on reasonable grounds that the child was aged 16 or over; or
the defendant was not more than 2 years older than the alleged victim.
Queensland
16, but 18 for anal sex
Carnal knowledge with or of children under 16;
Unlawful sodomy;
Indecent treatment of children under 16.
If the alleged victim was aged 12 or over and the defendant believed, on reasonable grounds, that the alleged victim was of or above the age of 16 (or 18 in the case of a charge of unlawful sodomy).
Western Australia
16
Child under 13, sexual offences against;
Child of or over 13 and under 16, sexual offences against.
Where the alleged victim was of or over the age of 13, and the defendant proves that:
they believed on reasonable grounds that the alleged victim was of or over the age of 16; and
that they were not more than 3 years older than the alleged victim.
South Australia
17
Unlawful sexual intercourse;
Indecent assault.
Where the alleged victim was of or above the age of 16 and the defendant either:
was under the age of 17 years on the date of the offence; or
believed on reasonable grounds that the alleged victim was of or above the age of 17.
Australian Capital Territory
16
Sexual intercourse with young person;
Acts of indecency with young people.
The defendant believed on reasonable grounds that the alleged victim was of or above the age of 16; or
At the time of the alleged offence:
the alleged victim was of or above the age of 10; and
the defendant was not more than two years older.
Northern Territory
16
Sexual intercourse or gross indecency involving child under 16 years;
Indecent dealing with child under 16 years.
If the alleged victim was of or above the age or 14 and the defendant believed on reasonable grounds that the alleged victim was of or above the age of 16.
The most significant differences between the legal positions of the various states and territories relate to the defences available to those who engage in consensual sexual activities with children under the age of consent.
On one end of the spectrum, New South Wales offers no statutory defence for any person who engages in sexual activities with a person under the age of consent. This means that where two children under the age of 16 engage in sexual activities, both will be committing a criminal offence.
At the other end of the spectrum, Tasmanian legislation provides significant protection to children who engage in consensual sexual activities with people of similar age.
Moreover, while minor, differences between the applicable age of consent create undesirable complexity and lack of uniformity.
Quite aside from any rights-based analysis, and as has been previously noted by the Australian Law Reform Commission in its 2010 Report Family Violence – A National Legal Response, a more cohesive and consistent approach would be strongly desirable.
The rights of the child
A key distinction between the South African context and the Australian legal landscape is the lack, in Australia, of a bill of rights. However, the Australian executive has adopted and, in 1990, ratified the CRC. While the CRC has not been incorporated into Australian domestic law through legislation, ratification results in obligations being undertaken at an international level, and to the Australian people, to implement and abide by its terms.
The key to the present analysis is to determine the intended effect of relevant laws and the actual effect of those laws. In Australia, just as in South Africa, laws prohibiting consensual sexual activities between young people were designed to protect children from physical and emotional harm.
It was decided in the Teddy Bear case that the laws in question infringed upon the right to privacy. A right to privacy is expressed also through Article 16 of the CRC which states that ‘[n]o child shall be subjected to arbitrary or unlawful interference with his or her privacy.’ It is clear that the offences noted in the table above allow an invasion of the privacy of children suspected of committing them. As said by the Court in the context of the similar laws impugned in the Teddy Bear case, ‘the offences allow police officers, prosecutors and judicial officers to scrutinise and assume control of the intimate relationships of adolescents, thereby intruding into a deeply personal realm of their lives’. Whether Article 16 is infringed therefore depends on whether this invasion of privacy is arbitrary, or whether it is, in all the circumstances, justified.
The Court in the Teddy Bear case labelled the impugned laws as being a ‘degrading and invasive’ form of stigmatisation. This is clearly true as imposing a stigma, which in some respects is degrading and invasive, upon convicted criminals is one of the functions of the criminal law generally. While this stigma may harm the individual children who are subjected to it, this does not alone mean that the laws cannot be justified if there is some benefit to children more generally.
It is important to recognise that the obligations assumed by Australia under the CRC do not all flow one way. They include obligations to protect children as well as obligations to respect children’s rights. Signatory states are required under Article 34, for example, to take all appropriate measures to protect children from sexual exploitation or abuse. They undertake pursuant to Article 3.2 to ‘ensure the child such protection… as is necessary for his or her well-being’. There is great potential for these different priorities to conflict and a solution which satisfies all obligations simultaneously may not be possible in every scenario. In such cases, the overriding requirement that ‘the best interests of the child shall be a primary consideration’ in all actions concerning children provides valuable guidance.
Evidence tendered in the Teddy Bear case, and corroborated in the Australian context by research undertaken by Anne Mitchell et al in National Survey of Australian Secondary Students and Sexual Health 2013 (La Trobe University, 2014), suggests that engagement in sexual activity is both common and developmentally normal for adolescent children. La Trobe’s survey found that over two thirds of Australian school students surveyed had engaged in some sort of sexual activity (although noted that many of those surveyed were above the age of 16). Of these, most felt positive about their past sexual experiences.
In light of this evidence, the foundations of the perceived need to protect children from consensual sexual activities with other children are weakened. It is surely not the case that consensual sexual activities between children constitute the kind of sexual exploitation or abuse that the CRC requires that children be protected from. Further, the prohibition of developmentally normal consensual sexual activities, and the invasions of privacy and impositions of stigma which go along with enforcing such prohibitions, appear to harm rather than enhance the wellbeing of children.
These conclusions are in line with those reached by the Court in the Teddy Bear case. There the Court referred to evidence that the existence and enforcement of the impugned laws exacerbated harm and risk to children by ‘undermining support structures, preventing adolescents from seeking help and potentially driving adolescent sexual behaviour underground’. The normative impact of the criminal law inevitably contributes to a needless sense of shame and secrecy around the issue of consensual underage sex between children.
These various harms strongly suggest that the invasion of privacy effected by the laws is indeed arbitrary and therefore infringes upon the CRC. Further, the laws do not appear to be in the best interests of children, and any protection they provide is certainly not positively required under the CRC.
Despite the above, the use of the criminal law likely operates to prevent sexual activities between children occurring in some instances. Doing so would necessarily avoid some negative impacts such as the transfer of STDs or unwanted pregnancy. Evidence suggesting that the impugned laws had little impact on participation rates, but a real impact on the likelihood of children engaging in unsafe sexual practices, led the Court in the Teddy Bear case to conclude that they increased overall risk and were not in the best interests of children. Here we suggest that reducing the participation of children in consensual sexual activities should not, itself, be the focus. Instead, emotional and physical risks should be managed directly through education, communication and referral outside the criminal justice system, without the stigma and punishment inherent to it.
Conclusion
The reasoning in the Teddy Bear case strongly suggests inflexible laws compromise children’s rights to dignity and privacy. Moreover, Australian empirical data suggests that the current laws have been largely ineffective in preventing sexual activities between children. Viewed in this light, the current Australian position, as epitomised by the laws of NSW, capture the worst of both worlds, not only failing to prevent most children from engaging in sexual activities, but also discouraging them from discussing those activities. Taking into account the best interests of children and in line with ALRC recommendations, a more liberal and flexible model, akin to that currently in place in Tasmania, should be adopted across all states and territories. Of course, exploitative sexual activity perpetrated by a minor that vitiates the consent of another would continue to attract the full force of the criminal law.
Amber Hu and Chris Andrews, Summer Clerks, King & Wood Mallesons.