Unlawful Sexual Intercourse; Sex with an underage person in South Australia

By James Cobiac


Unlawful Sexual Intercourse is an offence against South Australian Criminal Law. Sexual intercourse involves penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object (Criminal Law Consolidation Act 1935 (SA), s 5). This extends to the acts of fellatio and cunnilingus.

Allegations of unlawful sexual intercourse can be brought against an accused in a variety of circumstances. The first relates to the offence of having sexual intercourse with a person who is below the age of 14 years. The only defence available is to argue that the objective elements of the offence have not been made out by the prosecution. This includes arguing that the defendant was not the person with whom the alleged sexual intercourse took place, or that it has not been established that intercourse took place as defined above, or that the victim was above the age of 14. If the allegations against the defendant are proved the maximum sentence that can be imposed by the court is imprisonment for life.

A charge of having unlawful sexual intercourse can also be brought where it is alleged the defendant engaged in sexual intercourse with a person under the age of 17 years (but above the age of 14). There are two different statutory defences available to the defendant. Firstly, a defendant may successfully defend the charge if they demonstrate they were under the age of 17 at the time they engaged in the sexual intercourse and the person with whom they are alleged to have had sexual intercourse with was at least 16 years old.

The second defence available requires the defendant demonstrate they formed a belief on reasonable grounds that the person with whom they were engaging in sexual intercourse with was 17 years old, or older. Additionally, the victim must be at least of the age of 16. The key to this defence is to demonstrate that there were reasonable grounds available to the defendant to form the belief that they were engaging in sexual intercourse with a person who was of legal age. This will require an exploration of the events surrounding and leading up to the sexual acts to determine if any reasonable grounds exist that establish the defendant believed that what they were doing was lawful.

There are a number of additional aspects of charges of Unlawful Sexual Intercourse that are important to consider. The offence is primarily concerned with the age of the victim, consent to the sexual intercourse is of no consequence or relevance to this offence, although in circumstances where the victim was consenting, this will likely be relevant to sentence. Further, the defenses outlined above will not be available where the defendant was in a position of authority in relation to the victim. This includes a foster parent and a priest administering spiritual and/or vocational guidance to the victim. There are also a number of other positions of authority that are relevant considerations for a defendant facing this type of charge.

If you have been charged with criminal offending in Adelaide it is important that you seek advice from a lawyer. Culshaw Miller Criminal Lawyers are available to give advice or representation 24 hours a day on 0418 421 153. To make an appointment contact us on (08) 8464 0033.