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Ages of consent in Oceania
The ages of consent for sexual activity vary by jurisdiction across Australia, New Zealand and other parts of Oceania, ranging from age 15 to age 18. The specific activity engaged in or the gender of its participants can also be affected by the law. Below is a discussion of the various laws dealing with this subject. The highlighted age refers to an age at or above which an individual can engage in unfettered sexual relations with another who is also at or above that age. Close in age exceptions may exist and are noted when relevant. In Vanuatu the homosexual age of consent is set higher at 18, while the heterosexual age of consent is 15. Same sex sexual activity is illegal at any age for males in Papua New Guinea, Kiribati, the Cook Islands, Samoa, Tonga and Tuvalu; it is outlawed for both men and women in the Solomon Islands. In all other places the age of consent is equal, regardless of sexual orientation or gender.
The below is a list of all jurisdictions in Oceania as listed in the list of sovereign states and dependent territories in Oceania.
Australia[edit]
Australia is a federation of States and Territories, with each State and Territory having the primary jurisdiction over age of consent issues within its territory. However, as a result of the international affairs power under Australia's constitution, a 1997 United Nations Human Rights Committee ruling has resulted in States repealing rules that differentiated between homosexual and heterosexual people on age of consent issues.
Regulations by state[edit]
Federal laws[edit]
Under federal legislation that applies to all Australians, it is an offence for an Australian citizen, resident or body corporate[1]while outside of Australia to have sexual intercourse with a person under the age of 16[1] or to induce a child under the age of 16 to have sexual intercourse,[1] or be somehow involved in a similar sexual act.[1]
Sex between consenting adults (18 or over) in private, regardless of gender or sexual orientation cannot be outlawed under section 4 of the Human Rights (Sexual Conduct) Act 1994.[2][3]
Australian Capital Territory[edit]
It is an offence in the Australian Capital Territory to have sexual intercourse with a person under the age of 16.[4] However, it is a defence if the younger party was aged 10 years or older and the offender was not more than 2 years older than the younger party.[5] It is also an offence to have sexual intercourse with a person under the age of 18 if that person is under the care of the offender (guardian, teacher etc.).[6]
Coral Sea Islands Territory[edit]
The laws of the Australian Capital Territory apply to the Coral Sea Islands Territory.[7]
New South Wales[edit]
It is an offence in New South Wales to have sexual intercourse with a person under the age of 16[8] or attempt such an offence.[9] It is also an offence to have sexual intercourse with a person under the age of 18 if that person is under the care of the offender (guardian, teacher etc.).[10]
Norfolk Island[edit]
It is an offence in Norfolk Island for a person to have sexual intercourse or commit an act of indecency with a person under the age of 16.[11][12][13] The Australian Government has proposed to introduce a new offence of sexual intercourse with a young person under special care based on the law in the Australian Capital Territory.[14]
Northern Territory[edit]
It is an offence in the Northern Territory to have sexual intercourse with a person under the age of 16,[15]:s 127 or attempt such an offence.[15]:s 131 It is also an offence to have sexual intercourse with a person under the age of 18 if that person is under the care of the offender (guardian, teacher etc.).[15]:s 128
Queensland[edit]
The age of consent in Queensland is 16 and there is no close-in-age exception. It is illegal to have carnal knowledge of a person under the age of 16. "Carnal knowledge" includes all types of sexual activity.[16] Legislation in September 2016 lowered and equalised the age of consent for anal sex to 16.[17]
South Australia[edit]
It is an offence in South Australia to engage in any activity which involves fellatio, cunnilingus or placing any part of the body within the labia majora, vagina or anus of a person under the age of 17 unless they are lawful spouses.[18] The Australian Marriage Act can permit someone who is 18 or over to marry a 16-year-old.[19] But, it is a defence if the person is 16 at the time of the offence and either the offender is under 17 years of age or believe on reasonable grounds that the other person is 17 or older.[20] It is also an offence to have sexual intercourse with a person under the age of 18 if that person is under the care of the offender (guardian, teacher etc.).[21]
Tasmania[edit]
It is an offence in Tasmania to have sexual intercourse with a person under the age of 17.[22] However, it is a defence if the younger person was aged 12 years or older and the offender was not more than 3 years their senior or, if the younger person was of or above 15 years and the offender was not more than 5 years their senior.[22][23]
Victoria[edit]
It is an offence in Victoria to sexually penetrate a person under the age of 16.[24] However, it is a defence if the younger party was aged 12 years or older and the offender was not more than 2 years older than the younger person, or they were married.[25] It is also an offence for a person having the care of a person under the age of 18 (guardian, teacher etc.) to sexually penetrate that person.[26] A person under the age of 18 is not allowed to work as a prostitute nor to be in a brothel.[27]
Western Australia[edit]
It is an offence in Western Australia to sexually penetrate a person under the age of 16.[28] It is also an offence for a person in a position of authority over a person under the age of 18 to have sex with that person.[29]
Clipperton Island (France)[edit]
The laws of France where applicable apply.[30] (These specify a general age of consent of 15.) See Ages of consent in Europe#France.
Cook Islands[edit]
It is an offence in the Cook Islands to have sexual intercourse with a girl under the age of 16,[31] (ss146 and 147). If the girl consented and is aged 12 or more, it is a defence if the offender is younger than the girl, or if he is under 21 of age and "had reasonable cause to believe, and did believe" that the girl was aged 16 or older. (These defenses do not apply if consent was obtained fraudulently.)
There is no minimum age of consent for boys with women, although sodomy is illegal at any age (s155) and also exist the sodomy crimes that apply we criminal codes (S154, S159)
154. Indecency between males - (1) Every one is liable to imprisonment for a term not exceeding five years who, bring a male,-
(a) Indecently assaults any other male; or
(b) Does any indecent act with or upon any other male; or
(c) Induces or permits any other male to do any indecent act with or upon him.
(2) No boy under the age of fifteen years shall be charged with committing or being a party to an offence against paragraph (b) or paragraph (c) of subsection (1) of this section, unless the other male was under the age of twenty-one years.
(3) It is not defence to a charge under this section that the other party consented.
155. Sodomy - (1) Every one who commits sodomy is liable-
(a) Where the act of sodomy is committed on a female, to imprisonment for a term not exceeding fourteen years;
(b) Where the act of sodomy is committed on a male, and at the time of the act that male is under the age of fifteen years and the offender is of over the age of twenty-one years, to imprisonment for a term not exceeding fourteen years;
(c) In any other case, to imprisonment for a term not exceeding seven years.
(2) This offence is complete upon penetration.
(3) Where sodomy is committed on any person under the age of fifteen years he shall not be charged with being a party to that offence, but he may be charged with being a party to an offence against section 154 of this Act in say case to which that section is applicable.
(4) It is no defence to a charge under this section that the other party consented.
159. Keeping Place of resort for homosexual acts -Every one is liable to imprisonment for a term not exceeding ten years who-
(a) Keeps or manages, or acts or assists in the management of, say premises used as a place of resort for the commission of indecent acts between males; or
(b) Being the tenant, lessee, or occupier of any promises, knowingly permits the premises or any part thereof to be used as a place of resort for the commission of indecent acts between males; or
(c) Being the lessor or landlord of any premises, or the agent of the lessor or landlord, lets the premises or any part thereof with the knowledge that the premises are to be used as a place of resort for the commission of indecent acts between males, or that dome part thereof is to be so used, or is wilfully a party to the continued use of the premises or any part thereof as a place of resort for the commission of such acts as aforesaid.
More in line with the Criminal Code sections 152 and 153, the age of consent for same-sex men and women is begins, starting at 15 years
152. Indecent act between woman and girl - (1) Every woman of or over the age of twenty-one years is liable to imprisonment for a term not exceeding seven years who-
(a) Does any indecent act with or upon any girl under the age of fifteen years; or
(b) Induces or permits any girl under the age of fifteen years to do say indecent act with or upon her.
(2) The girl shall not be charged as a party to an offence committed with or upon her against this section.
(3) It is no defence to a charge under this section that the girl consented.
153. Indecency between man and boy - (1) Every one is liable to imprisonment for a term not exceeding ten years who, being a male-
(a) Indecently assaults any boy under the age of fifteen years; or
(b) Does any indecent act with or upon any boy under the age of fifteen years; or
(c) Induces or permits any boy under the age of fifteen years to do any indecent act with or upon him.
(2) No person under the age of twenty-one years shall be charged with committing or being a party to an offence against this section.
(3) It is no defence to a charge under this section that the boy consented.
Easter Island (Chile)[edit]
Federated States of Micronesia[edit]
The states’ statutory rape laws apply to children age 13 and below in Yap and Kosrae and age 15 and below in Pohnpei.[32] The age of consent in Chuuk state is 18.[33]
Fiji[edit]
Under the Crimes Decree of 2009, the age of consent in Fiji is 16, regardless of sexual orientation and/or gender. The relevant article is 215 - defilement of young persons between 13 and 16 years of age.[34]
French Polynesia (France)[edit]
The laws of France where applicable apply.[30] (These specify a general age of consent of 15.) See Ages of consent in Europe#France.
Juan Fernández Islands (Chile)[edit]
Kiribati[edit]
The age of consent in Kiribati is 15 (sections 133, 134 & 135), but homosexual sex is illegal at all ages (sections 153, 154 & 155). Furthermore, section 132 prohibits taking a girl under 18 out of the care of her parents or guardian for the purpose of sexual intercourse, while section 136 prohibits procuring a girl under 18 for sexual intercourse.[35]
Marcus Island (Japan)[edit]
Marcus Island is administratively under the government of Tokyo. See Age of Consent in Japan.
Marshall Islands[edit]
The age of consent in Marshall Islands is 16. Section 152(A) of the Criminal Code provides that anyone engaging in sexual penetration with a person under 16 is liable to imprisonment for up to 25 years.[36]
Nauru[edit]
In Nauru it is an offence under the Crimes Act 2016, Division 7.3 to engage in sexual intercourse with a person under the age of 16.[37] Consent is not a defence unless the younger party was aged 13 years or older and the offender was not more than 2 years older than the younger person.[37]
New Caledonia (France)[edit]
New Caledonia has a civil law system based on French law; the 1988 Matignon Accords grant substantial autonomy to the islands.[30]
New Zealand[edit]
It is an offence in New Zealand to have a sexual connection with a person under the age of 16.[38] It is a defence if due diligence had been undertaken by the defendant to ascertain the victim's age, had reasonable grounds to believe the victim was aged 16 or over and consent was given.[39] Further it is an offence for a person to have a sexual connection with a person under the age of 18 if the defendant is in a guardianship role (parent, stepparent, foster parent, guardian, uncle, aunt or other members of extended family, whanau or other power or authority or responsibility for care or upbringing).[40] The age of consent for girls had earlier been 12 years, and was progressively raised to 16 years in the late 19th century.
The age of consent for prostitution in New Zealand is higher. Although prostitution is legal, under the Prostitution Reform Act 2003 it is illegal to procure or receive sexual services from any person under 18.[41]
New Zealand has had a uniform and equal age of consent of 16, regardless of sexual orientation and/or gender since the passage of the Crimes Amendment Act 2005. All territories of New Zealand have legalized homosexuality in 2007 (except for the Cook Islands as shown below) LGBT rights in New Zealand under the Niue Amendment Act 2007.[42]
Contraceptives in New Zealand are not age restricted and are available to people under 16. A teen 12 years or older can be prosecuted for a consensual relationship with a teen under 16 (both parties if both are 12 years or older), although this is extremely rare. Even with a complaint, it is still up to police discretion and if the age difference is small it is rarely prosecuted, with family group conferences being the more likely option.[43] There was an attempt to formalise this under law in 2004, however this was abandoned after a public outcry. Before 2005, there was no law in New Zealand prohibiting any form of sexual relationship between adult women and male minors.[44]
The sexual abuse of boys of any age, including rape, by adult women was fully legal in New Zealand until 2005. This is despite New Zealand having been party to international conventions against the exploitation of children since the 1980s. In 2003, swimming instructor Stacey Margaret Friel, 21, was reported to have had sex with a 13-year-old boy, but faced no charges at the time due to the lack of laws against sexual abuse of boys by women. Since the loophole in the laws was closed there have been a number of cases of women being prosecuted for sexual abuse of young boys, including a woman who gave birth to the child of an 11-year-old boy whom she had allegedly raped.[45]
Tokelau[edit]
The age of consent is 16. Section 19 of the Crimes, Procedures and Evidence Rules, 2003 (CPER) reads: "1) A person who has carnal knowledge of another— [..] (i)(II)if the victim is under the age of 16 years, whether the victim consented or not [...] commits an offence." Section 21 reads: "(1) A person who indecently assaults another commits an offence. (2) Where the victim is a mental defective or under the age of 16 years it is no defence to a charge under this rule that the person consented to the offence, or that the person charged believed that the person assaulted was sane or not under the age of 16 years as the case may be."[46]
Niue[edit]
The age of consent in Niue is 15. This is established by article 164 of the penal code. Anal sex (buggery) is illegal.
Niue Act 1966
Okinotori Islands (Japan)[edit]
The Okinotori Islands are administratively under the government of Tokyo. See Age of Consent in Japan.
Palau[edit]
The age of consent in Palau is 17.[47] There is a close in age exemption allowing 15 and 16 year-olds to have sex with partners less than 5 years older. Article § 1602 reads: a) A person commits the offense of sexual assault in the first degree if: (...) (3) The person knowingly engages in sexual penetration with a person who is at least fifteen years old but less than seventeen years old; provided that: (A) The person is not less than five years older than the minor; and (B) The person is not legally married to the minor".[48]
Papua (Indonesia)[edit]
The age of consent in Indonesia Ages of consent in Asia.
Papua New Guinea[edit]
In Papua New Guinea it is unlawful to have carnal knowledge of a girl under the age of 16.[49] If the victim is aged 12 or more, it is a defence if the defendant "believed, on reasonable grounds" that the girl was aged 16 or older. It is a crime for any person to indecently deal with a boy under the age of 14 (section 211), and boys under the age of 17 are not deemed able to consent to acts by another male that, but for their consent, would be indecent assaults (section 243). Also having or allowing carnal knowledge "against the order of nature" is illegal at any age, as are acts of "gross indecency" between males (sections 210 and 212).
Pitcairn Island (United Kingdom)[edit]
The current age of consent appears to be 16, as a 1999 case involved a New Zealand tourist convicted of "unlawful carnal knowledge" of a girl of 15 (this will be confirmed once The Pitcairn Constitution Order 2010 comes into effect). However the Pitcairn sexual assault trial of 2004 involved mostly charges of rape or sexual assault, not "underage sex" (and some "gross indecency with a child under 14" charges), although it was claimed during the trial that (presumably consensual) "underage sex" with girls from the age of 12 was normal on Pitcairn.
Samoa[edit]
The age of consent in Samoa is 16, per Section 59. Sexual conduct with young person under 16, of the Crime Act 2013.[50] Homosexual acts are illegal regardless of age (Section 67. Sodomy).[50]
Solomon Islands[edit]
The age of consent in the Solomon Islands is 15 (sections 141, 142 & 143), but homosexual sex is illegal at all ages (sections 160, 161 & 162). Further, section 140 prohibits taking a girl under 18 out of the care of her parents or guardian for the purpose of sexual intercourse, while section 144 prohibits procuring a girl under 18 for sexual intercourse.[51]
Tonga[edit]
The age of consent in Tonga is 15.[52]
Carnal knowledge of child or young person
[...]
(2) Any person who carnally knows any young person under the age of 15 years shall be liable on conviction thereof to imprisonment for 5 years
Indecent assault
[...]
(5) A young person under the age of 15 years cannot in law give any consent which would prevent an act being an indecent assault for the purposes of this section.
Tuvalu[edit]
The age of consent in Tuvalu is 15 (sections 133, 134 & 135), but homosexual sex is illegal at all ages (sections 153, 154 & 155). Further, section 132 prohibits taking a girl under 18 out of the care of her parents or guardian for the purpose of sexual intercourse, while section 136 prohibits procuring a girl under 18 for sexual intercourse.[53]
United States (Hawaii and Pacific Territories)[edit]
Hawaii[edit]
The age of consent in Hawaii is 16 years old. There is however a close in age exemption, which allows those aged 14 and 15 to consent to sex with those less than five years older.[54]
Previously the age of consent was 14, the lowest in the United States. Avery Chumbley, a member of the Hawaiian Senate, had made efforts to raise the age of consent.[55] The age of consent was changed to 16 by Act 1, House Bill 236, passed by the Legislature of Hawaii in 2001.[56]
American Samoa[edit]
It is an offence in American Samoa to engage in sexual acts with a person under the age of 16.[57]
Guam[edit]
The age of consent in Guam is 16.
§ 25.25. Third Degree Criminal Sexual Conduct.[58]
(a) A person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exists:
(1) that other person is at least fourteen (14) years of age and under sixteen (16) years of age
(...)
Northern Mariana Islands[edit]
The age of consent in the Northern Mariana Islands is 16, according to Sections 1306-1309 of the Commonwealth Code.[59] There a close-in-age exemption permitting minors aged 13–15 to engage in sexual activity with those less than three years older. Under the same provisions, it is also illegal for any person aged 16 or older to aid, encourage, induce or causes minors under 13 to engage in any sexual activity, or minors aged 13–15 to engage in sexual activity with persons older than them by three years or more.
The age of consent rises to 18 when the older partner - being age 18 or older - is the parent, stepparent, adopted parent, or legal guardian of the younger person, or when the older partner has or occupies a position of authority over the younger person. This does not apply for minors aged 16 or 17 as long as the older partner is less than three years older and is not the younger person's parent, stepparent, adopted parent or legal guardian. According to section 1317, a position of authority "means an employer, youth leader, scout leader, coach, teacher, counselor, school administrator, religious leader, doctor, nurse, psychologist, guardian ad litem, babysitter, or a substantially similar position, and a police officer or probation officer other than when the officer is exercising custodial control" over a person under 18.
According to Section 1310, affirmative defenses for the crimes outlined in Sections 1306-1309 exists for consensual activity between legal spouses and for cases where the defendant reasonably believed that a minor age 13 or older was of legal age.
Sections 1303 and 1304 of the Commonwealth Code also criminalize sexual activity with persons aged 18 or 19, if they are "committed to the custody of the Department of Public Health and Environmental Services under the Commonwealth’s civil or criminal laws, and the offender is the legal guardian of the person".
Pacific Remote Islands Marine National Monument[edit]
Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Palmyra Atoll and Wake Island, are under the jurisdiction of the US Federal Government Department of the Interior, as part of the Pacific Remote Islands Marine National Monument. As such, all US Federal laws regarding age of consent would be applicable.
Midway Atoll[edit]
Midway Atoll is under the jurisdiction of the US Federal Government Department of the Interior (administered as a National Wildlife Refuge). As such, all US Federal laws regarding age of consent would be applicable.
Vanuatu[edit]
Since 1 January 2007 under the Criminal Consolidation Act 2006, the age of consent on Vanuatu is 15 for heterosexual conduct and 18 for homosexual conduct.[60][61] Article 97 reads: (...) (2) No person shall have sexual intercourse with any child under the age of 15 years but of or over the age of 13 years. (3) It is no defence to a charge under this section that the child consented or that the person charged believed that the child was of or over the age in question.[62] Article 99 reads: No person shall commit any homosexual act with a person of the same sex under 18 years of age, whether or not that person consents.[62]
Wallis and Futuna (France)[edit]
The laws of France where applicable apply.[30] See Ages of consent in Europe#France.
See also[edit]
References[edit]
- ^ abcdCriminal Code Act 1995Schedule: The Criminal Code (Cth) Division 272 — Child sex offences outside Australia.
- ^Human Rights (Sexual Conduct) Act 1994 (Cth) s 4 Arbitrary interferences with privacy.
- ^Cameron, S (20 July 2007). "Age of Consent". Australia federation of AIDS organisations. Archived from the original on 30 August 2007.
- ^Crimes Act 1900 (ACT) s 55(2)
- ^Crimes Act 1900 (ACT) s 55(3b).
- ^Crimes Act 1900 (ACT) s 55A Sexual intercourse with young person under special care.
- ^Application of Laws Ordinance 1973 (Coral Sea Islands) (Cth).
- ^Crimes Act 1900 (NSW) s 66C.
- ^Crimes Act 1900 (NSW) s 66D.
- ^Crimes Act 1900 (NSW) s 73.
- ^Despite the abolition of the Norfolk Legislative Assembly on 1 July 2015 by the Norfolk Island Legislation Amendment Act 2015 (Cth) the Criminal Code 2007 (NI) continues in force pursuant to the Norfolk Island Continued Laws Ordinance 2015 (Cth)
- ^Sections 113 and 119 "Criminal Code 2007 (NI)".
- ^R v Christian [2018] NFSC 2 (2 March 2018), Supreme Court (Norfolk Island, Australia).
- ^"Proposed changes to Norfolk Island laws to enhance the protection of women, children and young people"(PDF). Australian Government. March 2018. Retrieved 6 June 2018.
- ^ abcCriminal Code Act 2014Schedule 1 Criminal Code (NT).
- ^Criminal Code Act 1899 (Qld) s 215 Carnal knowledge with or of children under 16.
- ^Health and Other Legislation Amendment Act 2016 (Qld).
- ^Criminal Law Consolidation Act 1935 (SA) s 49(3).
- ^Marriage Act (Cth) s 12.
- ^Criminal Law Consolidation Act 1935 (SA) s 49(4).
- ^Criminal Law Consolidation Act 1935 (SA) s 49(5).
- ^ abCriminal Code Act 1924 Schedule 1 (Tas) s 124 Sexual intercourse with young person.
- ^"Sex: When can I have sex? What are the ages of consent in Tasmania? Who cannot have sex with me?". lawstuff.org.au. National Children's and Youth Law Centre. Retrieved 8 November 2017.
- ^Crimes Act 1958 (Vic) s 45(1).
- ^Crimes Act 1958 (Vic) s 45(4)(b).
- ^Crimes Act 1958 (Vic) s 48.
- ^Sex Work Act 1994 (Vic) s 11 & s 11A.
- ^Criminal Code Act Compilation 1913 (WA) s 320 & s 321.
- ^Criminal Code Act Compilation 1913 (WA, s322)Archived 11 March 2012 at the Wayback Machine
- ^ abcd"CIA - The World Factbook". Cia.gov. 17 November 2011. Retrieved 28 January 2013.
- ^Crimes Act (1969)Archived 20 May 2016 at the Wayback Machine
- ^"Archived copy". Retrieved 2014-07-31.
- ^"FEDERATED STATES OF MICRONESIA: CHILDREN'S RIGHTS REFERENCES IN THE UNIVERSAL PERIODIC REVIEW". Child Rights International Network. 2 November 2015. Retrieved 7 June 2018.
- ^http://ilo.org/dyn/natlex/docs/SERIAL/86223/97166/F1417546453/FJI86223.pdf
- ^Kiribati Penal CodeArchived 28 April 2016 at the Wayback Machine
- ^Marshall Islands Criminal CodeArchived 18 November 2010 at the Wayback Machine
- ^ abRONLAW, Crimes Act 2016Archived 7 October 2016 at the Wayback Machine, Division 7.3 — Sexual Acts with Children (Sections 116-127)
- ^NZ Crimes Act (1961) Part 7, section 134Archived 9 November 2016 at the Wayback Machine
- ^{Part 7 Section 134A}
- ^"Part 7, sections 131 & 131A". Archived from the original on 16 July 2011. Retrieved 16 July 2011.
- ^"Prostitution Reform Act 2003". legislation.govt.nz. Retrieved 12 January 2018.
- ^Niue Amendment Act 2007Archived 2 October 2015 at the Wayback Machine
- ^"Teens face tough new underage sex penalty". The New Zealand Herald. 26 May 2004.
- ^"PM condemns decriminalising 12-year-old sex". The New Zealand Herald. 24 May 2004.
- ^"Woman, 36, charged after having baby fathered by 11-year-old boy". The Age. Melbourne.
- ^http://www.paclii.org/tk/legis/num_act/cpaer2003302.rtf[permanent dead link].
- ^"2013 Penal Code of the Republic of Palau, RPPL No. 9-21 2013". paclii.org. 8 April 2011. Retrieved 28 January 2013.
- ^"Archived copy". Archived from the original on 4 March 2016. Retrieved 2013-01-28.
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