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Age of consent laws are designed to protect children and young people from sexual exploitation and abuse.Such laws effectively determine that children and young people below the age of consent do not have the emotional maturity to consent to sexual activities.
The first type relates to whether the accused believed on reasonable grounds that the person with whom they engaged in sexual behaviour was above the legal age of consent.Indicators of inequality include size and weight differences and differences in intellectual development.Indicators of power differentials are more subtle and they are often established prior to sexual interactions; for example, a strength differential may have been established in earlier wrestling, fighting or play (Ryan, 1997).Appropriate sexual exploration is when there is mutual agreement between same- or similar-aged peers, it is non-coercive and all participants have the control to participate, continue or stop the behaviour (Barbaree & Marshall, 2006).The state jurisdictions that provide a legal defence when the sexual interaction is between two young people close in age (Western Australia, Tasmania, Victoria and the Australian Capital Territory) are attempting to find a balance that protects children and young people from adult sexual exploitation in a way that does not criminalise them for having sexual relationships with their peers.In relation to sexual abuse charges in each state and territory, the key difference between child sexual assault and adult sexual assault is that adult sexual assault is based on the absence of sexual consent, whereas in child sexual assault, the issue of consent is superseded by age of consent laws (Eade, 2003).
An important distinction should be made between "willingness" and "consent".
The second statutory defence relates to situations in which the two people are close in age.
In Victoria and the Australian Capital Territory, engaging in sexual behaviour under the legal age can be defended if the defendant was not more than 2 years older, and in Western Australia not more than 3 years older, than the person against whom the offence is alleged to have been committed.
In considering the final factor of coercion, Ryan (1997) determined that coercion is the peer pressure put on one child by another to achieve compliance. The lower end may include implied authority, manipulation, trickery or bribery.
The top end of the continuum may include physical force, threats of harm and overt violence.
Reflecting on these three factors can help to clarify when behaviour is abusive.