The laws about what age a young person can validly consent to sex are different in each state and territory. In Victoria, like in the majority of jurisdictions, the age of consent stands at 16. However, a young person aged 16 or 17 cannot validly consent to sex with a person in a position of authority over them.
Like many states, Victoria has what is often referred to as a Romeo and Juliette law. This is a law that allows consensual sex between two young people of a similar age, while criminalising sex between an adult and a young person. The age of consent laws strive to find a balance between recognising the developing sexuality of young people and protecting children from exploitation and abuse by older people.
What is consent?
Consent is defined as free agreement (Crimes Act, Section 36).
Any sexual activity without consent is an offence regardless of the age of the participants. Offences relating to sexual activity without consent in Victoria include rape and indecent assault.
The Crimes Act states that a person is taken not to have consented to sex if:
- The person submits because of force or the fear of force;
- The person submits because of the fear of harm of any type;
- The person submits because the person is unlawfully detained;
- The person is asleep or unconscious;
- The person is so intoxicated as to be incapable of consenting to the act;
What is the age of consent?
Under Victorian law, a person aged 16 or older can validly consent to sex with any other person, except a person who in in a position of authority over him or her. This means that the general age of consent is 16.
A person aged between 12 and 16 can validly consent to sex with a person who is not more than two years older than him or her.
A person aged 18 or older can validly consent to a person in a position of authority over him or her. In this context, the age of consent is 18.
A person under 12 cannot consent to sex with anyone.
Person in position of authority
Under Section 49C of the Crimes Act, it is an offence for a person to sexually penetrate a child aged 16 or 17 who is under the person’s care, supervision or authority. This offence carries a maximum of 10 years imprisonment.
It is also an offence, under Section 49E, for a person in a position of care, supervision or authority to sexually touch a child. This offence carries a maximum penalty of 5 years imprisonment.
A person who has care, supervision or authority of a child is defined in Section 37 as including, but not being limited to:
- Parents and step-parents;
- Youth workers;
- Sports coaches;
- Health professionals;
- Religious leaders;
- Out of home carers;
- Police on duty;
Defences exist against offences under these sections where the accused was validly married to the child (Section 49Y).
Sexual offences against children
Child under 12
It is an offence to sexually penetrate a child aged under 12. This offence is punishable by a maximum of 25 years and has a standard sentence of 10 years (Section 49A).
Child under 16
It is an offence to sexually penetrate a child aged under 16 (Section 49B). This offence is punishable by a maximum of 15 years imprisonment and has a standard sentence of 6 years imprisonment.
Defences exist to a charge under Section 49B where:
- The accused was no more than two years older than the child and the child was aged 12 or older;
- The accused reasonably believed the child was aged 16 or older and the child was in fact aged 12 or older;
Sex Offenders Register
The Victorian Sex Offenders Register started in 2004 and is governed by the Sex Offenders Registration Act 2004. Persons who are found guilty of certain types of sex offences are required to register under this legislation so that police can keep track of their whereabouts and activities to reduce the chance of their reoffending.
Depending on the type and number of sex offences committed, a person can be required to remain on the Sex Offenders Register for a period of 8 years, a period of 15 years, or forever.
If you require legal advice or representation please contact Go To Court Lawyers.