11 June 2008

Under Age Sex -- Honest Mistake

The High Court in Australia has handed down a decision today which essentially reinstates the "honest mistake" defence in New South Wales.

The honest mistake defence requires that the defendant prove that they honestly believed that the "victim" was of the age of consent or above at the time the offence was committed.

In essence the following must be proved:

- the defendant honestly and reasonably believed their partner was at least 16, the age of consent;

- the partner consented to sex;

- and, in any case, the partner was at least 14 years old.

The NSW Crimes Act had been silent on this point since about 2003. However, with this decision that silence has effectively been removed.

So, next time you are in NSW keep this in mind if you are not sure and decide to go ahead anyway!

10 comments:

the writer said...

It's always difficult to tell the age of young girls these days (perhaps Asian girls are easier to tell than white girls), I saw some girls here who have bodies and face features equivalent to 25 years old women. The only difference is the way they talk/speak/behave.

Polar Bear said...

Asian girls are harder for westerners to "age". And Westerners are harder for Asians. In a dark bar, late at night, when the girl is drunk, I can convince an Asian girl I am really under 30....

Rob Baiton said...

The Writer...

I agree it seems to get harder and harder. There are probably plenty of underage girls and boys out there who an talk the talk too.

The point really was about the honest mistake and here I was really looking at pointing out there needs to be a little more to the honest mistake than just finding out post fact...I am wondering whether you have to be able to prove you asked and were told by the "victim" that they were of age...

PB...

So, you are over 30? I am in that club too!

I do not think it is an Asian or Western thing. Alcohol, bars, and lax age based entry restrictions mean that bars are sometimes a lottery with regard to whether the "women" are in fact women and not girls.

Once again, and similar to the comment earlier to the writer, I was really looking at this from the fact that the honest mistake defence has been reinstated and exactly what you have to do to prove it.

If you ask a woman in bar how old she is and she says 18, is that enough? Or do you have to ask for her ID card and then photocopy it just in case you need it later?

Just me trying to explore an interseting issue because I was out with some friends a couple of weeks ago, and I am hopeless on the "how old am I?" guessing game, but I have to say I was feeling a bit too old for the locale. So, it was off to the wine and cigar bar instead:D

Polar Bear said...

OK governor, it's a fair cop, you got me bang to rights. Im 35…... Plus…..

I find you can judge from general chitchat how old a girl is, both in content and interest. If a girl looks blankly at you when you ask “do you think Hilary is still pissed about Monica?” then she is under 20.

Honest mistake is an unusual defence at law. I assume they will only accept it for underage sex? Can I claim my tax claims with my cat as driver was an “honest mistake?” The rat poison in my ex wifes tea?

Damn the law can be tricky. Anyone know a good lawyer?

GJ said...

Rob, I do think the honest mistake defence should have an age limit on the accused. See if your 18 a tasty 15 yo may look old enough but if your 38 then I question the "mistake" bit. My experience on guessing age is, as you get older you tend to think people are younger than they really are not older!!! Haven't you seem someone and said shouldn't you be in school only to find out they are 23, or am I showing my age here, bugger.

GJ said...

Hey PB

Is there such a thing as a good lawyer????

Rob Baiton said...

GJ...

I tend to think people look younger as I get older. Hence, my point about being hopeless on the guess my age caper!

Even if you are 38, 58, or 78 it is not a crime to have sex with an 18 year old. It is a crime if she is 17 (and as PB pointed out in a post on his blog even if she is 17 yo 364 days and 23 hours and 59 minutes).

So, in that sense I do not agree that the mistake bit varies with the age of the perpetrator.

I know a few good lawyers and plenty of not so good ones. After all it is my profession :D

PB...

I gotta say that I have never used the Bill and Monica age determiner in Indonesia :) I do agree with you though that general chit chat will give you an idea but it is not a given that a legally under age girl would not know about these things! I know plenty of aver 18's that probably would not be able to engage in constructive or meaningful discussion about Bill Clinton and his sexual escapades.

On the cat and taxes front and on the ex-missus' tea you are going to need more than a good lawyer!

Polar Bear said...

My Lawyer is the HOTTEST Chinese girl you could ever meet, plays a mean game of tennis, golf like a pro, is a ballroom dancing champion and was a swimsuit model. Sadly, she got married last year, and NOT to the Bear.....

The problem is I spent all my time trying to peer down her top or up her skirt, instead of discussing the legal niceties of my latest charge.....

Rob Baiton said...

PB...

Sad indeed!

So, what are the latest charges?

site said...

Surely, the guy is totally just.