Consensual Underage Sex: What Are Your Obligations?

Grace’s mother is supportive of the relationship and the request for contraception. You are not sure if you are obliged to notify relevant authorities about Grace’s relationship.

Medico-legal issues

Your obligations to Grace include maintaining confidentiality, considering Gillick competence,¹ acting in her best interests and considering whether mandatory child abuse reporting legislation applies.

Child abuse reporting

Mandatory child abuse reporting legislation relates to the risk of harm/abuse, not age of consent laws, and is designed to protect young people from sexual exploitation and abuse. This requires the exercise of professional judgement and careful consideration to establish whether the young person is being physically or psychologically coerced into sexual activity. If a sexual relationship involving a young person is unequal, non-consensual or coercive, it is abusive and mandatory notification is required.

Age of consent

Each state and territory has legislation providing that any person who engages in sexual behaviour with a child under the age of consent is guilty of an offence and liable to be prosecuted, because the child is deemed not to have decision-making capacity to consent. The age of consent is 16 in all jurisdictions, with the exception of Tasmania and SA where it is 17 years of age. Tasmania, Victoria, ACT and WA provide a legal defence when the sexual interaction is between two young people of a similar age.

However, doctors have no obligation to report underage sexual activity that is not abusive.

Discussion

Given the substantial age difference between Grace and her boyfriend, you rightly consider whether a power imbalance exists in the relationship. However, based on your consultation with Grace, including her mother’s approval, you form the view that Grace is not being coerced into sexual activity and the sexual relationship is not abusive.

Although it is clear that Grace’s boyfriend is committing an offence because she is under the age of consent, there is no obligation to report this to the police (although you could discuss the law with Grace and her mum). As there is no concern that Grace is being abused or in need of protection, the requirements of mandatory reporting of child sexual abuse are not triggered.²

Tips for assessing underage developmentally appropriate sexual behaviour

Is there:

• consent – includes transparency, that both parties possess a similar cultural knowledge about standards of behaviour, are aware of possible consequences, have respect for agreement or disagreement without consequence, and have decision-making capacity (e.g. are unaffected by intoxication)
• equality – relates to the balance of power and control between those involved
• coercion – could be anything from implied authority and manipulation to physical force or threats of harm.³

If you are uncertain how to proceed in a particular case, please contact our Medico-legal Advisory Services team on 1800 011 255.

Gayle Peres da Costa
Claims Manager (Solicitor), MDA National

References

1. Bird S. Consent to Medical Treatment: The Mature Minor. Australian Family Physician. March 2011. Available at: racgp.org.au/afp/2011/march/consent-to-medical-treatment-the-mature-minor
2. Except in NT where s26 of the Care and Protection of Children Act 2007  mandates a report when there has been a “sexual offence” as defined in the Criminal Code.
3. Child Family Community Australia. Age of Consent Laws. Available at: aifs.gov.au/cfca/publications/age-consent-laws