The international US story of a 34-year-old female teacher (Letourneau) who seduced one of her 12-year-old students (Fualaau) into a relationship raises clear questions as to how this situation would be dealt with under Australian Criminal Law. Letourneau originally pleaded guilty to two counts of felony second-degree rape of a child in 1997 and was sentenced to seven years imprisonment as a result. As this is a US case, the legal position is slightly different in the Australian jurisdiction.
The Criminal Law Code 1899 (Qld), which governs criminal acts in Queensland, provides for many different acts that constitute crimes in regard to underage sexual activity with an adult. Taking the example of the US Letourneau case, the female defendant if in Australia would likely be facing charges of indecent treatment of a child under 16 and rape.
Additionally, the offences of carnal knowledge with a child under 16 and sexual assault may be brought in the alternative. For the purposes of examining how Queensland legislation would deal with Letourneau, it will only be necessary to examine the first three charges.
Indecent Treatment of a Child Under 16
Any person who unlawfully and indecently deals with a child under the age of 16 is guilty of an indictable offence. If, however, the child is of or above the age of 12 years, the offender is guilty of a crime, and consequently liable to 14 years imprisonment. A person will be liable for this crime if they permit themselves to be indecently dealt with by a child under 16 years, and, procures a child under the age of 16 years to commit an indecent act.
For the purpose of what constitutes “deals with”, the legislation provides any act which is done without consent. Although Letourneau claims Fualaau provided consent, the age of consent in Queensland is 16 years of age, meaning individuals aged 15 years and younger are not legally able to consent to any sexual activity.
Rape in AustraliaAny person who rapes another person is guilty of a crime and liable to a maximum penalty of life imprisonment. The person will engage in rape if they have carnal knowledge with the other person without the other person’s consent. Importantly, a child under the age of 12 years is incapable of giving consent. Consequently, although Fualaau was not under 12 years of age, the over-arching age of consent outlined above would dictate he was unable to lawfully provide consent to the sexual activities engaged in.
Read More: Criminal Law Sentencing Factors
If Letourneau committed the actions with Fualaau in the Queensland jurisdiction, she would likely be liable for charges of indecent treatment of a child of 12 years and more than one charge of rape. Although both parties have stated the relationship was consensual, as Fualaau was 12 years of age when the relationship began, he would be unable to legally provide consent.
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