CONFUSION over whether or not honestly mistaking a persons age can be used as a legal defence for having sex with a minor has been cleared up, after a judgment was handed down in the High Court regarding an incident in Coffs Harbour in 2004.
In October 2004, a 15-year-old girl – who can not be named for legal reasons – spent a night drinking with friends in Coffs Harbour before moving on to a unit, where she was allegedly sexually assaulted by a 17-year-old male and two others.
The 17-year-old defendant, identified as CTM, said the girl told him she was 16.
Fairfax newspapers reported last week that he was acquitted of sexual assault but convicted of having sex with a girl aged between 14 and 16, to which consent is not a defence but on appeal at the High Court, it was found that honestly and reasonably believing a sexual partner was at least 16 was a defence – although CTM did not meet its requirements.
Up until 2003, the defence was legitimate but was then scrapped, leaving the Crimes Act ambiguous on whether or not mistaking a person's age was a legal defence.
Local barrister John Carty said it was a good decision, given that honestly believing a person is over-age means the accused would not knowingly be committing an offence.
“I think it was the right decision. There are heavy penalties associated with sexual assault, and if someone honestly and reasonably believed a person was over-age, they do not have a guilty mind,” he said.
“There have been a lot of changes in recent years to protect the victim, which has been excellent. It is important that we do keep one eye on the rights of the accused and ensure they get a fair trial. If the government wants to get rid of that defence they should specifically do so – but I'm not sure they should, given it would be a miscarriage of justice if someone was wrongly convicted.”