‘Marriage’ to girl aged 12

AC v R [2016] NSWCCA 107, although not a medical matter, is of interest as it highlights the incapacity of a minor aged 12, to consent to sexual contact under the criminal law.

The unsuccessful appeal as to sentence related to a charge of  persistent sexual abuse by a man aged 26 of a girl aged 12, following a ceremony performed by a Sheikh (with the consent of the girl’s father) by which the applicant understood that he and the victim had become husband and wife.

It was not in issue that the ceremony was not one recognised under Australian law; that the victim was not legally entitled to marry; nor that she could not legally give her consent to the sexual intercourse which the applicant had with her following that ceremony: [13].

As to the capacity of and impact on the child, at  [56] – [57]:

The victim’s letter thus cannot sensibly be understood as evidencing either maturity, forgiveness, or an account which supports the conclusion that the injury, emotional harm, loss or damage caused by the applicant’s offence was not substantial. Consistent with her youth and consequent immaturity, it rather reveals a lack of real understanding of the seriousness of the assaults committed against her and the potential ongoing consequences of that abuse for her future development.

This victim remains at considerable risk of further psychological harm materialising in the years ahead, notwithstanding what she said in this statement and what she earlier told police. From what she said in those interviews it is apparent that the victim was then not entirely honest, given, for example, what she said as to her mother’s consent to the marriage and what was agreed by the parties on sentence, as to her mother’s opposition. That interview also revealed that the victim was unaware of relevant circumstances, including the advice which the applicant had received from the Imams he had approached at the mosque she attended with her family and his knowledge of the illegality of his actions.