This is the first article in a two-part series on issues of student consent in schools. In this series, Kieran Seed, Legal Research Consultant and School Governance reporter, examines the scope of different consent laws in Australia, and how they can impact upon the operation of schools.
The legal age of consent is, broadly speaking, the age at which a person becomes competent to provide free and informed consent to participate in sexual interactions. Consent laws in this area are designed to protect children and young people from sexual exploitation and abuse, by determining that persons below a certain age are not mature enough to safely participate in these kinds of activities.
According to the Australian Institute of Family Studies, the key elements of a consensual exchange from a theoretical and practical understanding are:
- transparency about the nature of the activity and an absence of deception
- all parties possessing similar knowledge of standards of behaviour
- all parties being similarly aware of possible consequences, such as pregnancy or disease
- respect for agreement or disagreement without repercussion
- freely given consent, with all parties having the legal competence to do so.
Legal competence is the key issue at hand – the primary consideration is the decision-making capacity of the individual to provide consent. For this reason, illness and intoxication by drugs or alcohol may also vitiate consent as they may undermine the decision-making capacity of the individual.
Engaging in sexual behaviour with a person who does not have the capacity to give, or has not given, consent, is without other extenuating circumstances, a sexual offence.
The current state of sexual consent laws
The Commonwealth Criminal Code, contained within the Criminal Code Act 1995 (Cth), contains general principles of criminal responsibility in Australia, but does not provide any definition of consent or age-related incapacity. Sexual consent laws consequently vary between jurisdictions.
In Victoria and Tasmania, consent means free agreement, and in all other jurisdictions except the ACT it refers to free and voluntary agreement. There is no definition of consent in the ACT. In South Australia and Tasmania, the age of consent is 17, while in all other Australian jurisdictions the age of consent is 16.
If a person is accused of engaging in sexual behaviour with someone under the legal age, there are various statutory defences available, which vary between each state and territory. Broadly speaking, there are two main types of defence, which are:
- the accused believed on reasonable grounds that the person with whom they engaged in sexual behaviour was above the legal age of consent, unless the victim was below a certain threshold
- the two people engaging in sexual behaviour are of similar age.
Legal developments in sexual consent
In the modern era, with the proliferation of social media and advanced digital technologies, consent is slowly becoming more of an uncertain concept. Innumerable legal interventions have been proposed and actioned in an attempt to protect children from sexual exploitation in online environments.
Laws have been developed in most jurisdictions to combat image-based abuse issues, including ‘revenge p*rn’ and ‘sexting’. Refer to our previous School Governance article for more information on image-based abuse, and the Office of the eSafety Commissioner’s website for the status of the laws in your jurisdiction.
These laws mostly act as adjunct sexual offences that target non-consensual distribution or capture of intimate images, and usually align with the age of consent. However, in some jurisdictions they remain out of sync with both legal and community expectations.
For instance, in Tasmania, it is an offence to produce, distribute, possess or access child exploitation material, relevantly defined as material describing or depicting, in an ‘offensive’ manner, a person who is or appears to be under the age of 18 years engaging in sexual activity or in a sexual context. The only relevant defence to this is that the material depicts sexual activity between the accused and a person under the age of 18 years that is not an unlawful sexual act. Given that the ‘age of consent’ in Tasmania is 17 years, this means that consensual sharing of intimate images between competent persons – such as senior school students - may be an offence.
Clarifying the nature of consent
As stated earlier, the ACT is the only jurisdiction to not have a clear definition of consent for criminal law purposes. However, this may finally be corrected through an amendment currently before the ACT Legislative Assembly.
The Crimes (Consent) Amendment Bill 2018 (ACT) (the Bill) was presented to Parliament on 11 April 2018 by the Greens representative Caroline Le Couteur MLA. It bears strong similarity to the Crimes (Invasions of Privacy) Amendment Bill 2017, which was tabled last year but did not progress due to passage of a similar amendment. Refer to our previous School Governance article.
The Bill proposes to amend the Crimes Act 1900 (ACT) in relation to consent in sexual offences, intimate image abuse offences, and child sex offences. The aim is to improve criminal justice in the ACT by, in summary:
- clarifying child p*rnography offences to ensure that images consensually shared by young people will not result in their prosecution, similar to the two-year rule for sexual offences
- including a statutory definition of consent based on the concept of free and voluntary agreement
- expanding the definition of consent for intimate image abuse and sexual offences by creating an affirmative definition of consent, modelled upon the ‘reasonable belief’ construction.
This last point has caused some concern in the legal profession as it is considered to constitute a departure from consent clauses in other jurisdictions and may shift the burden of proof.
Relevance to schools
If a teacher enters into a relationship with a former student, even if that student is over the age of consent, consent may be vitiated if it is considered likely that the student was groomed while they were still a student and/or below the age of consent. The findings of the Royal Commission into Institutional Responses to Child Sexual Abuse referred to a number of instances of children who were groomed so extensively that they believed themselves to be in a 'relationship' with their perpetrator. This was heard most commonly where victims were older high school students close to the age of consent and the perpetrators were teachers.
As discussed previously on School Governance, schools in their capacity as educators have a responsibility for assisting students to properly navigate social media and the online environment, in particular issues associated with image-based abuse and ‘sexting’. Communicating key issues around consent laws, in particular the age and meaning of consent for both sexual activity and intimate images, should form part of any sex education or sexual health curriculum. These key issues should also form part of staff training around the child protection legal framework.
As laws around image abuse and child protection continue to develop, schools should ensure they are aware of any legal developments in this area, and that their policies and procedures relating to child safety, professional boundaries and appropriate use of technology, as well as codes of conduct, align with legal and community expectations.