Having sexual intercourse with a person under the age of consent (17 generally, or 18 if in a position of authority) under Sections 49 of the Criminal Law Consolidation Act 1935 (SA).
SOUTH AUSTRALIAN DEFENCE LAWYERS
Accused or charged with unlawful sexual intercourse?
Get immediate legal advice from specialist defence lawyers who know how to navigate allegations of unlawful sexual intercourse.
Major indictable offence
District Court of South Australia
Maximum penalty of life imprisonment (for aggravated offences)
Unlawful Sexual Intercourse Key Facts
| Offence | Under Section 49 of the Criminal Law Consolidation Act 1935 (SA), it is an offence to have sexual intercourse with a person who is under the age of consent, under 17 generally, under 18 where the accused is in a position of authority, or with a person who lacks capacity due to intellectual disability. |
| Maximum Penalty | The maximum penalties for having sexual intercourse with: - A person under 14 years (maximum penalty: life imprisonment). - A person under 17 years (maximum penalty: 15 years’ imprisonment). - A person under 18 years where the accused is in a position of authority (maximum penalty: 10 years’ imprisonment). - A person with an intellectual disability who cannot understand the nature of the act (maximum penalty: 10 years’ imprisonment). |
| Typical Sentence | Imprisonment is almost always imposed. The length depends on the age of the victim, whether the accused was in a position of authority, the presence of coercion or violence, and whether the offending was repeated. Sentences range from several years to very lengthy custodial terms for aggravated offending. |
| Which Court? | This matter will be heard in the District Court of South Australia. |
| Process Timeline | Complaint → Police Investigation → Arrest → Police Interview → Bail Consideration (often refused) → Committal in Magistrates Court → Trial in District/Supreme Court → Sentencing if found guilty. (Average: 9-24 months) |
| Possible Defences | - Mistaken Belief of Age: Limited defence if the accused can prove they reasonably believed the child was above the age of consent (applies in some circumstances). - Consent (over age only): Not a defence if the complainant is under the statutory age. - Mistaken Identity: Proving the accused was not the offender. |
| What The Prosecution Must Prove | The prosecution must prove that sexual intercourse took place; and - That sexual intercourse took place; and - That the person was under a certain age; and - You had knowledge that you were having sexual intercourse with a person who was under the age specified under the legislation or was incapable of giving adequate consent due to an intellectual disability. |
Unlawful Sexual Intercourse Case Scenarios
Below are examples of how unlawful sexual intercourse may be charged and sentenced in South Australia. These examples are not indicative of a specific outcome and are for informational purposes only.
Low-Level Offence
Mid-Level Offence
Aggravated Offence
Low-Level Offence
Scenario:
An individual 18 years of age engages in sexual intercourse with a person aged 15, believing on reasonable grounds that the person was 17 or older.
What to expect:
May result in a lesser penalty if the court accepts the defendant’s position. The court, if not satisfied that a term of imprisonment is warranted, may impose a good behaviour bond.
Mid-Level Offence
Scenario:
A 22 year old person engages in a single act of sexual intercourse with a person 15 years of age.
What to expect:
If convicted, the accused would likely be sentenced to a term of imprisonment, which is unable to be suspended or served on home detention.
Aggravated Offence
Scenario:
A teacher engages in a single act of sexual intercourse with a 14 year old student under their care.
What to expect:
If convicted, the offender will receive a substantial custodial sentence, ordinarily over 6 years imprisonment. The combination of the victim’s young age and the breach of trust inherent in the teacher-student relationship places the offence at the upper end of seriousness within this category.
Disclaimer: The examples above are provided for informational purposes only and do not guarantee a specific result in your matter. Sentencing decisions can vary significantly depending on individual circumstances, including the severity of the offence, intent, prior criminal history and other legal factors. For case-specific advice, get in touch with one of our expert criminal lawyers.
Our Results For Similar Offences
To view our past case results, please click the links below:
Indecent Assault
Indecent Assault
Rape, Indecent Assault and Assault
Rape, Indecent Assault and Assault
Removal of Reporting Conditions Under the Child Sex Offenders Register Act
Removal of Reporting Conditions Under the Child Sex Offenders Register Act
Indecent Assault
Indecent Assault
Breach of ANCOR
Breach of ANCOR
Unlawful Sexual Intercourse FAQ’s
If you need more information about unlawful sexual intercourse in South Australia, these FAQs answer the most common questions.
What is the age of consent in South Australia?
The legal age of consent is 17 years old in South Australia. However, sexual intercourse with someone under 18 is unlawful if there’s a position of authority involved (e.g. teacher, coach, guardian). There are limited defences based on close-in-age exceptions.
Is there a close-in-age defence for unlawful sexual intercourse in SA?
Yes. If the accused was under 17 at the time or reasonably believed the other person was 17 or older, it can be a defence (section 49(4)).
What is considered a ‘position of authority’ under South Australian law?
Positions of authority include:
- Teachers, religious leaders, coaches, foster parents, health professionals, employers, guardians, social workers
Even if the child is over 16, sexual activity in these circumstances can still be unlawful.
Is consent a valid defence for unlawful sexual intercourse?
No. Consent is not a defence to a charge of unlawful sexual intercourse where the complainant is under the prescribed age. The law assumes that a child under 17 (or 18 in authority cases) cannot legally consent.
What if I didn’t know the person was underage?
You may have a defence if you honestly and reasonably believed the person was 17 or over, and the person was at least 16 years old. This only applies in limited circumstances outlined in section 49(4) and (5a).
Can someone under 18 be charged with unlawful sexual intercourse?
Yes. While minors can be charged, courts will consider their age and circumstances. The law includes specific defences for teens who are close in age to their partner.
What if both parties are underage?
If both participants are underage, prosecution discretion applies. However, technically, both could be charged unless an applicable defence (e.g., being under 17) is raised.
Is it unlawful to have sex with a person who has an intellectual disability?
If the person is unable to understand the nature or consequences of sexual intercourse due to an intellectual disability, the other party commits an offence under section 49(6).
Is parental permission a defence to unlawful sexual intercourse?
Parental permission is not a defence.
South Australia’s Leading Sexual Assault Lawyers
What Our Clients Say
Our solicitors have defended thousands of sex related offences over decades and are experts in matters such as unlawful sexual intercourse.
KNOW YOUR RIGHTS
Arrested or Spoken to by Police?
Talk to a Specialist Defence Lawyer
Get immediate legal advice today.
Book a Free Consultation
Your first consultation is free.