The Offence of Sexual Intercourse With Young Person Under Special Care

A Western Australian volleyball coach who engaged in sexual relations with a 16-year old he was coaching has been given a suspended prison sentence, despite the judge accepting that he was unaware it was a criminal offence.

The 39-year old coach – whose name has been suppressed to protect the teen – pleaded guilty to 11 counts of having sexual intercourse with a person between the ages of 16 and 18 ‘under his care, supervision or authority’. The female was 16 years and 8 months of age when the sexual relationship commenced.

During the sentencing hearing, District Court Judge Stephen Scott accepted the relationship was “mutual”, and that there was no “coercive or forceful behaviour” or “any pressure brought to bear by [the defendant”. It was also accepted that the coach was unaware the conduct was against the law but that he “readily concede[d] what you did was morally wrong”. The judge further noted the defendant had been undergoing psychological counselling.

However, his Honour found that the offence was “very serious” due to the “significant disparity” in age, and that general deterrence required a “significant sentence” to be imposed.

He found that the conduct warranted a 2 year prison term but suspended the sentence conditional upon the defendant be supervised, continuing his counselling and not committing further offences.

The age of consent in NSW

Like in WA, the age of consent in New South Wales is generally 16 years.

However, there are situations where a person over that age is deemed unable to consent to sexual acts.

Sexual acts with young persons under special care

One of those situations is outlined in section 73 of the Crimes Act 1900 (NSW), which provides that:

(1) Any person who has sexual intercourse with a young person who:

(a) is under his or her special care, and

(b) is of or above the age of 16 years and under the age of 17 years,

is liable to imprisonment for 8 years.

(2) Any person who has sexual intercourse with a young person who:

(a) is under his or her special care, and

(b) is of or above the age of 17 years and under the age of 18 years,

is liable to imprisonment for 4 years.

Another is contained in section 73A of the Crimes Act which states:

(1) Any person who intentionally:

(a) sexually touches a young person under the person’s special care, or

(b) incites a young person under the person’s special care to sexually touch the person, or

(c) incites a young person under the person’s special care to sexually touch another person, or

(d) incites another person to sexually touch a young person under the first person’s special care,

is guilty of an offence.

The maximum penalty where the young person is at least 16 but under 17 years of age is 4 years in prison, or 2 years where the person is at least 17 but under 18.

What is a relationship of ‘special care’?

The sections state that a relationship of special care exists where:

(a) the offender is the step-parent, guardian or authorised carer of the victim or the de facto partner of a parent, guardian or authorised carer of the victim, or

(b) the offender is a member of the teaching staff of the school at which the victim is a student, or

(c) the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, or

(d) the offender is a custodial officer of an institution of which the victim is an inmate, or

(e) the offender is a health professional and the victim is a patient of the health professional.

A statutory defence to the charge is that the parties were married at the time.

Section 72B of the Crimes Act defines ‘member of the teaching staff’ as:

(a) a teacher at the school, or

(b) the principal or a deputy principal at the school, or

(c) any other person employed at the school who has students at the school under his or her care or authority.

What is the meaning of ‘sexual intercourse’?

Sexual intercourse is defined by section 61H of the Act as:

• sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:
• any part of the body of another person, or
• any object manipulated by another person, or
• sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
• cunnilingus, or
• the continuation of any of the above conduct.

What is ‘sexual touching’?

‘Sexual touching’ is defined by section 61HB of the Crimes Act as touching another person with any part of the body or with anything else, or through anything, including anything worn by either person, in circumstances where a reasonable person would consider the touching to be sexual.

The section provides that the matters to be taken into account when deciding if touching is sexual include whether:

• the area of the body touched or doing the touching is the person’s genital area, anal area or – in the case of a female person, or a transgender or intersex person identifying as female – the person’s breasts, or
• the defendant’s actions are for sexual arousal or sexual gratification, or
• any other aspect of the touching, or the circumstances surrounding the touching, make it sexual.

Touching is not sexual if it was carried out for genuine medical or hygienic purposes.

Charged with a sexual offence?

If you have been accused of a sexual offence, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a conference with an experienced defence lawyer who will advise you about the law, your options and the best way forward.