South Australian Current Acts South Australian Current Acts57—Consent no defence in certain cases
(1) Subject to
subsection (1a), a person under the age of 18 years will be taken not to
be capable of consenting to an indecent assault committed by a person who is
in a position of authority in relation to the person.
(1a) Despite
subsection (1), the alleged victim's consent will be a defence to a
charge of indecent assault if the accused was a person of a class described in
subsection (4)(c) in relation to the alleged victim and proves
that—
(a) the
alleged victim was, on the day on which the offence is alleged to have
occurred, of or above the age of 17 years; and
(b) the
accused—
(i)
was, on that day, under the age of 18 years; or
(ii)
believed on reasonable grounds that the alleged victim
was, on that day, of or above the age of 18 years.
(2) Subject to
subsection (3), no person under the age of seventeen years shall be
deemed capable of consenting to any indecent assault.
(3) Where the person
is between the age of sixteen and seventeen years, his or her consent shall be
a defence to a charge of indecent assault if the accused proves that at the
time of the indecent assault—
(a) he
or she was under the age of seventeen years; or
(b) he
or she believed on reasonable grounds that the person was of or above the age
of seventeen years.
(4) For the purposes
of
subsection (1), a person is in "a position of authority" in
relation to a person under the age of 18 years (the "child") if—
(a) the
person is a teacher and the child is a pupil of the teacher or of a school at
which the teacher works; or
(b) the
person is a parent, step-parent, guardian or foster parent of the child or the
de facto partner or domestic partner of a parent, step-parent, guardian or
foster parent of the child; or
(c) the
person provides religious, sporting, musical or other instruction to the
child; or
(d) the
person is a religious official or spiritual leader (however described and
including lay members and whether paid or unpaid) in a religious or spiritual
group attended by the child; or
(e) the
person is a health professional or social worker providing professional
services to the child; or
(f) the
person is responsible for the care of the child and the child has a cognitive
impairment; or
(g) the
person is employed or providing services in a correctional institution (within
the meaning of the Correctional Services Act 1982 ) or a training centre
(within the meaning of the Young Offenders Act 1993 ), or is a person
engaged in the administration of those Acts, acting in the course of the
person's duties in relation to the child; or
(ga) the
person is employed or providing services in a licensed children's residential
facility (within the meaning of the Children and Young People (Safety)
Act 2017 ), or a residential care facility or other facility established
under section 36 of the Family and Community Services Act 1972 , or is a
person engaged in the administration of those Acts, acting in the course of
the person's duties in relation to the child; or
(h) the
person is an employer of the child or other person who has the authority to
determine significant aspects of the child's terms and conditions of
employment or to terminate the child's employment (whether the child is being
paid in respect of that employment or is working in a voluntary capacity).