Acknowledgements

Executive Summary

Introduction

The Research Process

NSW Age of Consent legislation

Homosexual Age of Consent in Australia

Homosexual Age of Consent worldwide

Primary arguments against equalisation

Primary arguments in favour of equalisation

Professional organisations’ positions

Material from Australian Royal Commissions and Government
Enquiries

Conclusions

Bibliography

Thematic list of references

MAJOR REPORT - 2001

THE AGE OF CONSENT
AND GAY MEN IN NEW SOUTH WALES

Executive Summary

The age of consent as it now stands for gay men in New South Wales is 18 years of age. This is in contrast to the age of consent for heterosexual people and lesbians. This report evaluates the proposal that the age of consent be equal regardless of gender or sexual orientation. In order to make the age of consent equal for all means changing the age from 18 to 16 for gay men. The reasons for this change derive from social justice arguments, a substantial review of the psycho-social literature, and from our empirical research on young gay men and on the health, welfare, and counselling professionals who provide services to them. Age of consent in Australia There are divergent ages of consent throughout Australia at present. There are sometimes different ages of consent within jurisdictions based on gender or sexual orientation (as in NSW), by specific acts, or in terms of the context in which certain specific acts take place. In all states the consent of the young person remains irrelevant. The NSW homosexual male age of consent legislation stands alongside West Australia and the Northern Territory as one of the least liberal in the nation. Homosexual age of consent internationally Most of the OECD-type nations, all of the Western European democracies, and the majority of the former communist states in Eastern Europe and the Balkans 5 have significantly more progressive homosexual age of consent measures than NSW. The Netherlands has the most liberal age of consent. In a sample of 50 nations where male homosexuality is legal only 7 had an age of consent similar to or higher than NSW for gay men. Primary arguments against equalising the age of consent Our research found that the primary arguments against equalising the age of consent were o More young men are likely to be exposed to older sexual predators o Young men will be more likely to experiment with homosexual activity and are likely to be seduced and "converted" to an unwanted homosexual lifestyle o Young men will be encouraged to engage in homosexual activity at an earlier age o Because young men will be encouraged to have sex at an earlier age this will lead to higher rates of HIV infection o Homosexuality is pathological; therefore the longer it is delayed the better. We also found a proposal to equalise the age of consent but to raise it to 18 for everyone. In evaluating these proposals we found no peer-reviewed empirical evidence to support any of these positions. Indeed each of these assertions has been challenged by published academic research. The empirical evidence from this project also challenged these assertions. 6 Primary arguments in favour of equalisation These arguments were compiled from an analysis of a range of sources including -- Parliamentary briefing papers; Royal Commission submissions; public endorsements from relevant professional organisations; local and international peer-reviewed academic research and the findings of our own empirical research with young gay men in NSW, and health, welfare, and counselling professionals providing services to that population.

UNEQUAL AGE OF CONSENT REPRESENTS DIRECT DISCRIMINATION AGAINST YOUNG MEN

Current NSW legislation, by setting the general age of consent at 16, already concedes that young men are of sufficient maturity to consent to sex. No where is it claimed that young gay men are any less mature than young heterosexuals -- and an examination of the findings of contemporary developmental psychological research indicates that there is no reason to believe that young gay men are any less capable of reasoned consent than their heterosexual peers.

CURRENT LEGISLATION PROVIDES TACIT SUPPORT TO EXTANT HOMOPHOBIA -- ADDING TO THE OPPRESSION OF YOUNG GAY MALES

Most young gay men in NSW grow up in a decidedly homophobic environment, facing many threats to their psychological and physical well being. 7 o As a result young gay men are at a very high risk of committing suicide (up to 300% more at risk than their heterosexual peers). It is by far the leading cause of death for young gay men. o In such a climate it would be prudent to review any legislation which might offer even tacit support to homophobic elements and which negatively impacts on the social integration and psychological health of young gay men.

THE HIGHER AGE OF CONSENT SETS UP BARRIERS TO ESSENTIAL PUBLIC HEALTH, WELFARE AND EDUCATIONAL PRACTICE

Researchers the world over have documented the impediments imposed by unequal age of consent legislation on such essential services. They also note that such impediments are especially problematic in the light of the fact that for young gay males the mid teens form a developmental stage at which information, education and support are of the utmost importance. o NSW health, welfare, and counselling professionals interviewed in this study all reported significant difficulties with providing information and support around sexuality issues to young gay males by virtue of the fact that this could be viewed under NSW law as aiding and abetting a criminal activity -- leaving them potentially open to prosecution and de-funding.

CURRENT LEGISLATION ABETS CORRUPT LAW ENFORCEMENT PRACTICES AND POSSIBLE EXTORTION OF YOUNG GAY MEN

This concern was voiced repeatedly by Justice Wood in the 1997 Royal Commission into the NSW Police Service.

THE UNEQUAL AGE OF CONSENT CREATES POTENTIAL (AND UNNECESSARY) DIVISIONS WITHIN AN OPPRESSED GROUP

One salient effect of the current legislation consistently noticed by workers involved in groupwork with young gay men is the reticence of gay men in the 18-25 year age group to engage socially with 16 and 17 year olds. This reticence was almost certainly due to fear of innuendo and possible legal ramifications and works to divide 16 and 17 year old gay men from the friendship, wisdom and survival skills older men might offer.

CURRENT LEGISLATION LEADS TO THE POTENTIAL CRIMINALISATION OF A GROUP OF YOUNG PERSONS WITH NO MEASURABLE BENEFIT TO THEM OR WIDER SOCIETY

There is no evidence to demonstrate the benefits of a higher age of consent for young gay men. Moreover, sexually active 16 and 17 year old men are potentially and some actually criminalised by the application of current legislation. With criminalisation a range of concomitant negative effects comes into play. Professional organisations' support for equalising the age of consent Significant and reputable domestic and international bodies, including the British Medical Association, have argued the case that the age of 16 constitutes a sensible age of consent across the board, regardless of gender, sexuality or other factors. Domestic organisations favouring equalisation of the age of consent at 16 years across the board include: The South Australian Police Force; o The Child Health Council of South Australia; o Westmead Hospital and Community Health Services (NSW); o The Federation of Community Legal Centres; and o The National Children and Youth Law Centre o Queensland Psychologists for Social Justice Since the 1960s the majority of European Commissions recommended across the board equalisation at 14 years, three recommended equalisation at 15 years and just one recommended equalisation at 16 years. European professional, academic and religious associations that have called for an across the board age of consent set at 14 years include: o The German Sexological Association o The Howard League for Penal Reform (UK) o The National Council for Civil Liberties (UK) o The Catholic Youth Council (The Netherlands) o The Dutch Bar Association o The British Criminological Society Australian Royal Commissions All of the following have made recommendations that the age of consent be equalised at 16 years or lower. o Wood Royal Commission 1997 o Model Criminal Code Officers Committee (1996) o Model Criminal Code Officers Committee (1999) o QLD Parliamentary Criminal Justice Committee (1990) o Royal Commission on Human Relationships (1977) No Royal Commission or Government Inquiry in the last 30 years has argued for a higher age of consent for young gay males. 10 Conclusions No substantial psycho-social evidence was found to support a higher age of consent for young gay men. The evidence supports the position that the age of consent should be equalised on the grounds that the current position is not only discriminatory against young gay men but is harmful in inhibiting their access to educational, health, and welfare services at a time when they need them most.