Sexual Offences Against Persons Under Special Care in NSW — Sections 73 and 73A

In New South Wales, the age of consent is 16. However, the law imposes strict criminal liability where a young person aged 16 or 17 is under the authority of another person. In these circumstances, consent is legally irrelevant. Sections 73 and 73A of the Crimes Act 1900 (NSW) are designed to protect young people from exploitation by those in positions of trust, including teachers, carers, religious figures, health professionals, and others who exercise authority over them.

If you have been charged with an offence under section 73 or 73A, it is critical to obtain legal advice at an early stage. These matters are strictly indictable and must be dealt with in the District Court. A conviction carries serious consequences, including imprisonment, registration as a sex offender, and a permanent criminal record.

The Offences

Section 73 makes it an offence to engage in sexual intercourse with a young person aged 16 or 17 who is under the accused’s “special care.” The maximum penalty is 8 years imprisonment where the complainant is aged 16, and 4 years where they are aged 17.

Section 73A extends criminal liability to sexual touching. It is an offence to sexually touch a young person under special care, or to incite them or another person to engage in such conduct. The maximum penalties are 4 years imprisonment for a 16-year-old complainant and 2 years for a 17-year-old. “Sexual touching” is defined broadly in section 61HB and includes touching of the genitals or breasts, or any touching carried out for sexual arousal or gratification. Both offences are strictly indictable and must proceed to the District Court.

Special Care Relationships

The concept of “special care” is defined exhaustively in the legislation and captures relationships characterised by authority and trust. This includes:

• Parents, guardians, and authorised carers.
• Teachers, principals, and other school staff, regardless of whether they directly teach the young person.
• Individuals who have established personal relationships with a young person through religious, sporting, musical, or similar instruction — such as coaches, tutors, and youth leaders.
• Health professionals and their patients.
• Custodial officers supervising young people in detention or correctional facilities.
• Residential care workers and those providing accommodation to young people where an authority relationship exists.

What the Prosecution Must Prove

To secure a conviction, the prosecution must prove beyond reasonable doubt that the accused engaged in the alleged conduct; that the complainant was aged 16 or 17 at the relevant time; that the conduct amounted to sexual intercourse under section 73 or sexual touching under section 73A; and that the complainant was under the accused’s special care within the meaning of the Act. If any one of these elements cannot be established, the charge must fail.

Available Defences

The Similar Age Defence. Section 80AG of the Crimes Act 1900 (NSW) applies to both offences and provides a complete defence where the complainant was aged 14 or above and the age difference between the parties was no more than two years. Once raised, the prosecution bears the onus of disproving it beyond reasonable doubt.

Challenging the Special Care Relationship. The prosecution must establish that the relationship falls squarely within one of the defined categories. Where there is no genuine position of authority or no established personal relationship of the kind contemplated by the legislation, this element may not be made out.

Contesting the Facts. In some cases, the defence will involve contesting the factual allegations, including the reliability or credibility of the complainant’s account.

Marriage Exception. An exception applies where the parties were lawfully married at the time of the alleged conduct.

Consequences of a Conviction

Maximum penalties range from 2 to 8 years imprisonment depending on the circumstances. A conviction will also result in placement on the NSW Child Protection Register, with reporting obligations that may extend for many years or even life. A conviction will result in the loss of eligibility for a Working With Children Check, and will appear on criminal history checks with lasting implications for employment, professional licensing, and travel.

Sexual offences against persons under special care are, perhaps understandably, highly sensitive and often complex matters. They can be difficult to navigate, particularly in cases where the complainant is a young person or has some other type of vulnerability.

Special care needs to be taken when examining evidence in these types of matters, preparing the matter for court, and in dealings with a complainant and any other witnesses.

Irrespective of the outcome, these types of matters can be highly traumatic for all parties involved and because of this, these types of matters must be approached delicately, carefully, and with a trauma-informed approach.

— Jelena, Lamont Law