Sally Cameron discusses the differing age of consent laws across Australia and their impact on HIV rates among young people.

It's an emotional thing:sex and the protection of young people. Age of consent laws struggle to satisfy two vital criteria. On the one hand, there is the need to protect young people, particularly children, from sexual assault. Child sexula assault is abhorrent and strong penalties must be applied. On the other hand, there is the need to ensure that age of consent laws do not criminalise young people engaging in intimate and sexual acts as a normal part of their development into young adults. In terms of HIV prevention aducation: context is crucial. Obviously, it is ineffective to preach a safe sex message simultaneously with an 'illegal' sex message. Even more importantly, safe sex practices are likely to be most effective when people are comfortable in their sexuality and sexual practice. Laws that criminalise consensual behaviour work against that.

Writing about sex-related age of consent laws in Australia is challenging for a number of reasons. Firstly, age of consent laws differ from state to state, and they differ in various ways, for example the ages at which consent may be given and defences which may be used against age of consent charges. Secondly, it is difficult to write about a generalised notion of 'sex' as there are many different kinds of sexual acts. In this article I have used the terms 'gay sex' to broadly describe anal sex between two men. Thirdly, and most importantly, this article provides a basic outline and some analysis of current Australian age of consent laws. It does not constitute legal advice anf anyone with questions about a particular case or set of circumstances should seek independent advice from a legal practitioner.

Perhaps it is not so curious then that age of consent laws (and the corresponding defences available) vary from state to state. Debate has always been heated whenever the criminal law has 'intruded' into the private domain. For example, two decades ago, there was resistance to efforts to change Australian laws to make it illegal for a man to rape his wife. A decade ago, this issue was whether new domestic violence laws had 'gone too far'.

In general terms, until recently homosexuality and/or gay sex was illegal or had a higher age of consent than heterosexual sex. There has been nothing automatic about arriving at our current position(s). The battle has been hard fought by energetic individuals and communities who demanded greater equity. Politicians have struggled to set a precise age at which sexual acts become legal. Generally the greatest stumbling block has been well-intentioned people's drive to protect children from sexual exploitation, and articularly to protect boys from predatory men. What this most frustrating argument rlies on is confusion around the nature of paedophilia, i.e. confusing gay and paedophile. This association of gay and paedophile constantly rears its ugly head, which is both offensive, given the heinous nature of child sexual abuse, and odd because substantial research to date has identified that the overwhelming majority of sexual abuse and assault against children is by men against girls.

Long Term Confusion

The application of a muddled age of consent rationale is nothing new although, until recently, the focus was on the age of consent for girls with the priority being, not the protection of girls but the protection of men. In 1891, the matter was raised by Dr. Richard Arthur and debated by the NSW Branch of the British Medical Association. Dr. Arthur argued that age of consent (14 years) was too young as girls of that age were too young for pregnancy, although he had noticed that girls "who appeared fully developed were the most stupid and least likely to be trusted". Arguments included that girls mature earlier in the sub-tropical climate and that it could increase the crime of murder and the incidence of blackmail. Another referred to a case where a man was in gaol for "having had a connection" with an under-age girl, even though she was "known throughout the district for being no good".

The matter was raised again in 1903 but opposed by the then Attorney-General who claimed it was more urgent to protect young boys from seduction by 'vicious' girls. He claimed that generally men did not seduce girls because "the good sense and natural feeling of honour that there is amongst men not only restrains them as individuals, but the idea is repulsive and has social stigma attached to it which prevents the commission of a crime of that kind".

The Honourable Nicholas Hawken supported the Attorney-General citing the consequence of delaying a woman's apportunity to acquire a husband by two years, and the result that she might never marry "but may have to live all her miserable axistence in her rancid virginity". In 1910 the age of consent for girls was finally raised to 16 but contained an exemption for 'immoral' girls.

Law Reform in Tansania

Just in case you still think law reform happens by osmosis or 'because it should', Tasmania provides a striking contemporary example of the enormous struggle by numerous individuals to make change.

By 1994, Tasmania was the only Australian jurisdiction with criminal laws against homosexual conduct, for which consent was no defence. Tired of getting nowhere, and having just witnessed the defeat of law reform in the Tasmanian Parliament, activist Nicholas Toonen decided not to mess about and took a complaint to the UN Human Rights Committee. In quick succession, gay law reform was again introduced and defeated in parliament, the UN Committee upheld Toonen's complaint (i.e. Toonen won), the federal government attempted to write a federal law overriding Tasmania's state law (a rare action by the Commonwealth), gay activists took the case to the High Court, gay law reform was again proposed in Parliament but rejected, and the High Court agreed to hear the Tasmanian case. As well as all legal to-ing and fro-ing, protests were held and boycotts called against Tasmanian produce. Finally, in May 1997, ay law reform not only passed, but became part of the Tasmanian Premier's "vision for a socially inclusive Tasmania".

What About Queensland?

The age of consent for gay and straight sex is 16 years of age in the ACT, New South Wales, Northern Territory, Victoria and Western Australia. It is 17 years of age in South Australia and Tasmania. The states achieved this equity between gay and heterosexual sex by removing provisions relating to consensual anal sex or homosexuality and sex, so if you go looking for the provision which names the age of consent for gay sex -- it's not there.

Only Queensland retains a discriminatory age of consent for gay men, with 16 years of age for most sex and 18 years of age for anal sex. The maximum penalty is 14 years imprisonment. The law was brought in when homosexual sex was decriminalised in the early 1990s, predictably to address people's concerns about 'protecting young people'. To avoid overtly discriminating against gay men, the age of consent was made 18 for anal sex (with men or women) despite the Criminal Justice Commissions recommendation that a broad age of consent be set at 16 and it being obvious that this indirectly discriminates against young gay men.

Many have actively supported the need for law reform. Paul Martin, Queensland AIDS Council General Manager, says that "the current law causes confusion amongst many in the community who believe that all sex between men is illegal before the age of 18". That aside, the law is highly problematic because"

-Young people may be reluctant to come forward for sexual health information and services for fear of being prosecuted for underage sex. Without adequate and accurate information, young people may inadvertently be placed at risk of contracting HIV or other sexually transmitted infections.

-Teachers, health workers and other professionals may be uncertain or reluctant to talk about anal sex to under 18 year olds for fear of being seen to 'encourage' underage sex.

-Young people's access to accurate information about safe sex and sexual health services is restricted.

-A 17 year old who has anal sex with a 1 year old can be arrested and sent to goal for up to 14 years, and could be considered a paedophile.

-The law reinforces negative perceptions of anal sex, making it more difficult for young people to come out and accept their sexuality.

-Anyone under 18 who has anal sex is a criminal in Queensland.

Australia's National HIV/AIDS Strategy is internationally recognised as a model public health response. One of its strengths is its acknowledgement of the importance of an enabling legal and policy environment for HIV prevention, treatment and care programs. Laws should be consistent with the National Strategy's aim of developing a non-punitive and supportive legal environment that encourages people whose behaviour might put them at risk, to respond to education campaigns and to access testing and treatment services on a voluntary basis. Laws should pointedly avoid measures that might increase stigma of groups who are targeted for high risk behaviours.

What makes this issue so important is that Queensland has recorded its fourth consecutive rise in HIV notifications. In 2005, 150 new notifications were reported, following on from 137 notifications in 2004. 2005 showed a 19.2 per cent increase in HIV infections, which follows a 20 per cent increase in infections reported 2003.

Defences

Although age of consent is now fairly consistent across the states and territories, the available defences are not. A quick snapshot of each jurisdiction reveals an apparent obsession of each parliament to put their individual mark on the legislation, presumably in an attempt to 'get it right'. That being said, there are generally two types of defences available. the first relates to the two people concerned being close in age.

The second relates to the accused having made a reasonable mistake in believing the person with whom they were having sex was over the age of consent. Current defences are:

-ACT - it is a defence if you believed your partner was 16 or older, or your partner was above the age of 10 and consented, and you were not more than two years older than them.

-Northern Territory - it is a defence if your partner was 14 or older and you believed they were 16 or older.

-Queensland - it is a defence if your partner was 12 years older and you believed they were 18 or older (or 16 years for non-anal sex).

-South Australia - it is a defence if your partner was 16 or older and you were under 17 or believed your partner was 17 or older.

-Tasmania - it is a defence if you believed your partner was 17 or older.

-Victoria - it is a defence if your partner was 10 or older and you believed they were 16 or older, or you were not more than two years older than them.

-Western Australia - it is a defence if you believed your partner was 16 or older and you were not more than three years older than them. New South Wales did a curious thing when it removed its 'mistaken age' defence to age of consent law offenses in 2003. Some 20 years after Labor Premier Neville Wran decriminalised homosexuality, age of consent was finally lowered to 16 years of age. Debate was fierce. As parliamentarians debated the issue for the third time, Gay and Lesbian Rights Lobby Co-Convenor, Rob McGrory, sought to reassure politicians facing the difficult decision whether to pass the new laws by reassuring them that Western Australia had recently equaliised the age of consent. He assured them that "the sky [hadn't] fallen".

Finally, after considerable resistance from the established churches and right-wing politicians, Parliament lowered the age of consent. At the same time, however, the mistaken age defence was removed. The defence had explicity allowed defendants in sexual assault cases to claim a reasonable mistake of age, provided the 'victim' was in fact between 14 and 16 years of age. What the absence of a specific defence in NSW's Crimes Act means in practice is not altogether clear as to date it has not been tested.

Young People's Sex

In May 2005, the Australian Research Centre in Sex, Health and Society (ARCSHS) at La Trobe University, Victoria, published research that drew on the experiences of 1,749 same sex attracted young people from throughout Australia. The report found that many young people came to a very early realisation of their sexual difference, with the majority realising their sexual difference at puberty (11-13 years). It also showed that same sex attracted young people were likely to be sexually active earlier than their heterosexual peers (although sometimes these early encounters were with people of the opposite sex).

The report quotes several research participants, including Simon, whose sexual pathway is considered by the researchers as typical of a sexual trajectory of many of the young men. "I first knew I 'like boys' when I was in year four (nine years old), first touched a boy's penis at age 11, first blew, and got a blow (oral sex) in year eight aged 13, first had anal sex at 17." Simon is similar to others involved in the research with sexual experiences that were usually gradual and consensual.

Of particular relevance to HIV educators, the report found 70 per cent of the 15-18 year olds surveyed used a condom during their last penetrative sex encounter, although boys were more likely to use a condom than girls. Rates of diagnosed STIs were five times higher than those for heterosexual young people (from ARCSHS's secondary schools survey), with 10 per cent having been diagnosed with a STI. These findings give a clear message in terms of safe sex education, not the least of which is that young people require more and better sexual health information and support in having safe and protected sex. A note to all states and territories -- clearly that can't effectively occur if the consensual sexual acts in which they engage are illegal. Are you listening Queensland?

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