Unlawful sexual intercourse
Any person 17 years or older can have sexual relations with another person aged 17 years or more, if they each consent. This can be a person of the same or the opposite sex [Criminal Law Consolidation Act 1935 (SA) s 57]. It is against the law for a person in a position of authority (for example, a teacher) to have sex, or to try to have sex with a person under 18 years [Criminal Law Consolidation Act 1935 (SA) s 49; see s 49(5a) for a defence in limited circumstances].
The offence of Unlawful Sexual Intercourse includes:
- A person who has sexual intercourse with a person under 14 years old.
Maximum penalty: life imprisonment
[Criminal Law Consolidation Act 1935 (SA) s 49(1)];
- A person who has sexual intercourse with a person under 17 years old -
Maximum penalty: 15 years imprisonment
[Criminal Law Consolidation Act 1935 (SA) s 49(3)]
However there is a defence to this if the alleged victim is above 16 years old and the accused person either was under 17 years old themselves or reasonably believed that the alleged victim was over 17 years old [s 49(4)];
- A person who has sexual intercourse with a person under 18 years old who holds a certain position of authority (such as teachers, foster-parents, guardians, step-parents, religious officials, spiritual leaders, social workers, employers, and others)
Maximum penalty: 10 years imprisonment
[Criminal Law Consolidation Act 1935 (SA) s 49(5), s 49(9)];
However there is a defence to this charge if the accused person:
- was in a position of authority (by providing religious, sporting, musical or other instruction to the child); AND
- the alleged victim was at least 17 years old; AND
- the accused person was under 18 years old themselves or the accused person believed on reasonable grounds that the alleged victim was at least 18 years old [s 49(5a)];
- A person who, knowing the other person is, by reason of intellectual disability, unable to understand the nature or consequences of sexual intercourse, has sexual intercourse with the other person;
Maximum penalty: 10 years imprisonment
[Criminal Law Consolidation Act 1935 (SA) s 49(6)].
Willingness of the alleged victim to engage in sexual intercourse is not a defence to any of these offences [s 49(8)]. Parental permission is also not a defence.
A useful website for young people and parents on this topic is: www.trustedmoments.com.au
Unlawful sexual intercourse : Last Revised: Fri May 26th 2023
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