Ages of consent in Oceania

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Main article: Age of consent

The ages of consent for sexual activity vary by jurisdiction across Australia, New Zealand and 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. Other variables for example is a higher age of consent for anal sex, such as the Australian state of Queensland that sets a higher age of consent at 18 for anal sex in Queensland (defined as sodomy under section 208 of the Queensland 1899 Criminal Code). In some places, there is crime only when a penetration is involved, so women are automatically exonerated.

The below is a list of all jurisdictions in Oceania as listed in 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.

Federal laws (legislation that applies to all Australian people)[edit]

Under federal legislation, 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[2] or to induce a child under the age of 16 to have sexual intercourse,[3] or be somehow involved in a similar sexual act.[4]

Sex between consenting adults (18 or over) in private, regardless of gender or sexual orientation can not be outlawed under section 4 of the Human Rights (Sexual Conduct) Act 1994.[5]

  • Australia federation of AIDS organisations, age of consent (20 July 2007)[6]
  • Australia federation of AIDS organisations, age of consent - State and territory legislation (29 June 2006)[7]

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.[8] 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.[9]

Coral Sea Islands Territory[edit]

The laws of the Australian Capital Territory apply to the Coral Sea Islands Territory.

New South Wales[edit]

It is an offence in New South Wales to have sexual intercourse with a person under the age of 16[10] or attempt such an offence.[11] 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.).[12]

Norfolk Island[edit]

It is an offence in Norfolk Island for a person to have sexual intercourse or an act of indecency with a person under the age of 16 (Criminal Law Amendment Act 1993.[13]

Northern Territory[edit]

It is an offence in the Northern Territory to have sexual intercourse with a person under the age of 16[14] or attempt such an offence.[15] 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[16] (guardian, teacher etc.).

Queensland[edit]

It is an offence in Queensland to have carnal knowledge of a person under the age of 16 (Criminal Code Act 1899, s.215). "Carnal knowledge" does not include "sodomy" (i.e., anal sex) which is not permitted with a person under the age of 18, regardless of gender or what position is taken by which individual.[17][18]

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 they are lawful spouses.[19] The Australian Marriage Act can permit someone who is 18 or over to marry a 16 year old.[20] However, 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[21] 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[22] (guardian, teacher etc.).

Tasmania[edit]

It is an offence in Tasmania to have sexual intercourse with a person under the age of 17.[23] However, it is a defence if the younger person was aged 12 years or older and the older was not more than 3 years their senior or, if the younger person was of or above 15 years and the older was not more than 5 years their senior.[24][25]

Victoria[edit]

It is an offence in Victoria to sexually penetrate a person under the age of 16.[26] 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.[27] It is also an offence for a person having the care of a person under the age of 18 to sexually penetrate that person[28] (guardian, teacher etc.). A person under the age of 18 is not allowed to work as a prostitute nor to be in a brothel.[29]

Western Australia[edit]

It is an offence in Western Australia to sexually penetrate a person under the age of 16.[30] It is also an offence (s.322) for a person in a position of authority over a person under the age of 18 to have sex with that person.[31]

Clipperton Island (France)[edit]

The laws of France where applicable apply.[32] (These specify a general age of consent of 15.) See Ages of consent in Europe#France.

Easter Island (Chile)[edit]

Federated States of Micronesia[edit]

Fiji[edit]

Under the Crimes Act 2010 effective since 1 February 2010, the age of consent in Fiji is 16, regardless of sexual orientation and/or gender.

French Polynesia (France)[edit]

The laws of France where applicable apply.[32] (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.[33]

Marcus Island (Japan)[edit]

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.[34]

Nauru[edit]

The age of consent in Nauru is 17. The penalty for unlawful carnal knowledge or attempted carnal knowledge of a girl under 17 is six years imprisonment. Indecent treatment of a girl under 17 is a misdemeanor punishable by two years imprisonment.[35]

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.[32]

New Zealand[edit]

It is an offence in New Zealand to have a sexual connection with a person under the age of 16[36] 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.[37] 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)[38]

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 Homosexual Law Reform Act in 1986. 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.[39]

Although age of consent laws in New Zealand (as with most other western countries) are currently severe, consensual relationships between adults and young teens are usually not prosecuted unless the parent or child complain about it. Although a teen 14 years or older can be prosecuted for a consensual relationship with a teen under 16 (both parties if both are 14 years or older), 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.[40] 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.[41]

The sexual abuse of boys of any age, including rape, by adult women was fully legal in New Zealand until around 2007. 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 most recently a women who gave birth to the child of an 11 year old boy whom she had allegedly raped.[42]

Cook Islands[edit]

It is an offence in the Cook Islands to have sexual intercourse with a girl under the age of 16,[43] (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, although sodomy is illegal at any age (s155) and it is illegal for men aged 21 or more to commit indecent acts on boys under the age of 15 (s153). Similarly, it is illegal for women aged 21 or more to commit indecent acts on girls under the age of 15 (s152).

Niue[edit]

National.

The age of majority is understood to be 21 years for a man and 19 years for a woman (Niue Act 1966. Part 21. Marriage. 526 Marriage of Minors) [L1.2].[44]

In May 2011, reportedly the age of consent had been equalised [R1.1].[44]

Tokelau[edit]

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 16.[45]

Papua (Indonesia)[edit]

Papua New Guinea[edit]

In Papua New Guinea it is unlawful to have carnal knowledge of a girl under the age of 16.[46] 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]

It is an offence to have sexual intercourse with a girl under the age of 16: sections 51 and 53 of Samoa's crime ordinance.[47] If the girl consented and is aged 12 or more, it is a defence if the defendant was younger than the girl, or if he was under 21 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, although sodomy is illegal at any age (section 58E) and it is illegal for men aged 21 or more to commit indecent acts on boys under the age of 16 (section 58C). Similarly, it is illegal for women aged 21 or more to commit indecent acts on girls under the age of 16 (section 58B).

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.[48]

Tonga[edit]

The age of consent is 16. A girl under the age of 16 cannot legally consent to acts that would constitute indecent assault, but for her consent (section 124): Indecent assault. 124. (2) A girl under the age of 16 years cannot in law give any consent, which would prevent an act being an indecent assault for the purposes of this section. (Inserted by Act 9 of 1987.)[49] Indecent assault on any child under the age of 12 is an offence attracting a harsher penalty, and consent of the victim is no defense (section 125). Sodomy is illegal at any age (section 136). Carnal knowledge of a girl under 12 also carries a harsher penalty of life imprisonment (section 120) and it is no defence to believe she consented (section 122).

It should be noted, also, that section 126 prohibits procuring a woman under 21 to have unlawful carnal connection.

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.[50]

United States[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.[51]

American Samoa[edit]

It is an offence in American Samoa to engage in sexual acts with a person under the age of 16.[52]

Baker Island[edit]

Baker Island is 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.

Guam[edit]

The age of consent in Guam is 16.

§ 25.25. Third Degree Criminal Sexual Conduct.[53]

(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

(...)

Howland Island[edit]

Howland Island is 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.

Jarvis Island[edit]

Jarvis Island is 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.

Johnston Atoll[edit]

Johnston Atoll is 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.

Kingman Reef[edit]

Kingman Reef is 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.

Northern Mariana Islands[edit]

The age of consent in Northern Mariana Islands is 18.[54]

Palmyra Atoll[edit]

Palmyra Atoll is 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.

Wake Island[edit]

Wake Island is under the jurisdiction of the US Federal Government through the 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.

Vanuatu[edit]

Since 1 January 2007 under the Criminal Consolidation Act 2006, the age of consent on Vanuatu is 16, regardless of sex or sexual orientation.[55][56]

Wallis and Futuna (France)[edit]

The laws of France where applicable apply.[32] See Ages of consent in Europe#France.

See also[edit]

References[edit]

  1. ^ Crimes Act 1914 - {s50AD}
  2. ^ Crimes Act 1914 - {s50BA}
  3. ^ Crimes Act 1914 - {s50BB}
  4. ^ Crimes Act 1914 - {s50BC}&{s50BD}
  5. ^ "HUMAN RIGHTS (SEXUAL CONDUCT) ACT 1994 - SECT 4 Arbitrary interferences with privacy". Austlii.edu.au. Retrieved 2013-01-28. 
  6. ^ [1][dead link]
  7. ^ [2][dead link]
  8. ^ Crimes Act 1900, s55(2)
  9. ^ s55(3b)
  10. ^ Crimes Act 1900, s66C
  11. ^ s66d
  12. ^ s73
  13. ^ {sections 93, 93E(2) and 93K(2)}
  14. ^ {s127}
  15. ^ {s131}
  16. ^ {s128}
  17. ^ [3][dead link]
  18. ^ {s208}
  19. ^ Criminal Law Consolidation Act 1935, s49(3)
  20. ^ Marriage Act s12
  21. ^ {s49(4)}
  22. ^ {s49(5)}
  23. ^ Criminal Code Act 1924, s13-124
  24. ^ [4][dead link]
  25. ^ s13-124(3)
  26. ^ Crimes Act 1958, s45(1)
  27. ^ s45(4)(b)
  28. ^ s48
  29. ^ Sex Work Act 1994 (Vic), ss11 & 11A
  30. ^ Criminal Code Act Compilation 1913, ss.320 & 321
  31. ^ WA Criminal Code Act Compilation 1913
  32. ^ a b c d "CIA - The World Factbook". Cia.gov. 2011-11-17. Retrieved 2013-01-28. 
  33. ^ Kiribati Penal Code
  34. ^ Marshall Islands Criminal Code
  35. ^ "2009 Human Rights Report: Nauru". State.gov. 2010-03-11. Retrieved 2013-01-28. 
  36. ^ NZ Crimes Act (1961) Part 7, section 134
  37. ^ {Part 7 Section 134A}
  38. ^ Part 7, sections 131 & 131A
  39. ^ Niue Amendment Act 2007
  40. ^ "Teens face tough new underage sex penalty". The New Zealand Herald. 26 May 2004. 
  41. ^ "PM condemns decriminalising 12-year-old sex". The New Zealand Herald. 24 May 2004. 
  42. ^ "Woman, 36, charged after having baby fathered by 11-year-old boy". The Age (Melbourne). 
  43. ^ Crimes Act (1969)
  44. ^ a b "Laws | Niue NU". Gay Law Net. 2007-09-19. Retrieved 2013-01-28. 
  45. ^ "2010 Human Rights Report: Palau". State.gov. 2011-04-08. Retrieved 2013-01-28. 
  46. ^ sections 213 and 216 of the Criminal Code (1974)
  47. ^ Crimes Ordinance (1961)
  48. ^ Solomon Islands Penal Code
  49. ^ Tonga Criminal Offences Act
  50. ^ Tuvalu Penal Code
  51. ^ "House Bill". Capitol.hawaii.gov. 2008-04-03. Retrieved 2013-01-28. 
  52. ^ http://www.asbar.org/index.php?option=com_content&view=category&id=750&Itemid=172
  53. ^ [5][dead link]
  54. ^ http://www.cnmilaw.org/frames/Commonwealth%20Code.html
  55. ^ http://www.vanuatugovernment.gov.vu/index.html
  56. ^ http://www.ilga.org/statehomophobia/ILGA_State_Sponsored_Homophobia_2009.pdf