Marriage proposal swings illegal sex case
Justice John Burns. Photo: Graham Tidy
A young Canberra man awaiting trial for sleeping with his underage girlfriend is now engaged to her and can legally have consensual sex with her.
The girl, now 16, says she loves her fiance and wants the case dropped.
The 19-year-old man has pleaded not guilty to five counts of having sexual intercourse with the girl when she was 14 and he was 17 and 18.
He had been committed to stand trial in the ACT Supreme Court when, last month, he proposed to his girlfriend at Cockington Green.
In July the court varied his bail so the pair could have supervised contact, after a year apart, but banned them from having intercourse.
Via an affidavit filed last week by the man's lawyers, Ben Aulich and Associates, the girl said she wanted the conditions on their relationship lifted. "I love [him] very much and am very excited that we are now engaged to be married," she said.
"I understand [his] current bail conditions do not allow us to engage in sexual intercourse until I reached the age of 16 years. I am now 16 years old, I wish to have a sexual relationship [with my fiancee]."
Neither teen can be named.
On Friday, Justice John Burns deleted five of the man's bail conditions and varied a sixth. The change, not opposed by the Crown, means the pair can now see each other without supervision and have a sexual relationship.
The law became involved in the couple's relationship when the girl became pregnant but miscarried.
Police were called in to investigate after hospital staff, bound by mandatory reporting obligations, contacted authorities.
Under territory law, as in most other jurisdictions, a child under 16 cannot consent to sexual intercourse.
Court documents show the girl's mother was aware the pair were in a relationship and approved of her daughter's boyfriend.
There is a legal defence available if the age gap between the two is no more than two years - a provision designed to protect young lovers from prosecution.
In this case the three-years-and-seven-months age difference falls outside that window.
The girl says in the affidavit that she does not want to give evidence against her husband-to-be.
"I am in love with [him] and I do not want him to be prosecuted for the alleged offences."
If the young man is found guilty and a conviction is recorded, he will be placed on the national child sex offenders' register.
The girl has refused to provide a statement to police or prosecutors but gave evidence at a pre-trial hearing this year.
The man's defence says prosecution is not in the public interest.
The case is due to go to trial in September.