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The laws about what age a person can validly consent to sexual activity are different in each jurisdiction of Australia. In Victoria, like in most jurisdictions, the age of consent is 16. However, a person aged 16 or 17 in Victoria cannot validly consent to sex with someone in a position of authority over them. This article outlines the age of consent in Melbourne and elsewhere in Victoria and summarises the main sexual offences against children under Victorian law.
Like many of the states, Victoria has what is often called a Romeo and Juliette law. This is a law that permits sex between two young people who are of a similar age, while criminalising sex between adults and young persons below the age of consent. The age of consent laws strive to strike a balance between recognising that adolescents are developing sexually and protecting young people from exploitation and abuse by older people.
Overview
Consent | Age of Consent | Sexual Offences | Sex Registry
What is consent?
Under section 36 of the Crimes Act 1958 VIC, consent is defined as free agreement.
Any sexual activity without consent is a criminal offence in Victoria regardless of the age of the persons involved. Offences relating to sexual acts without consent include rape and indecent assault.
The Crimes Act 1958 VIC states that a person is taken not to have validly consented to sex if:
- They submit because of force or threats of force;
- They submit out of fear of harm of any type;
- They submit because the person is unlawfully detained;
- They are asleep or unconscious;
- They are so intoxicated that they cannot consent to the act;
What is the age of consent in Melbourne?
Under Victorian law, someone who is aged 16 or older can validly consent to sex with any other person, except someone who in in a position of authority over them.
A person aged between 12 and 16 can consent to sex with a person who is not more than two years older than them.
A person aged over 18 can validly consent to a person in a position of authority over them. In this context, the age of consent is 18.
A person under 12 cannot validly consent to sex with any other person.
Age of consent in Melbourne: person in position of authority
Section 49C of the Crimes Act 1958 VIC makes it an offence for a person to sexually penetrate a child aged 16 or 17 where the child is under the person’s care, supervision or authority. This offence carries 10 years imprisonment.
Under section 49E, it is also an offence for a person in a position of care, supervision or authority to sexually touch a child under their care. This offence carries up to 5 years imprisonment.
A person with care, supervision or authority of a child includes, but is not limited to:
- Parents and step-parents;
- Employers;
- Teachers;
- Youth workers;
- Counsellors
- Sports coaches;
- Religious leaders
- Health professionals;
- Police on duty;
- Out of home carers.
There are defences that can be relied on where the accused was validly married to the child.
Sexual offences against children
The penalties that apply to sexual offences against children depend on the age of the child involved.
Child under 12
It is an offence under section 49A to sexually penetrate a child younger than 12. This offence is punishable by 25 years imprisonment and has a standard sentence of 10 years.
Child under 16
It is an offence under section 49B to sexually penetrate a child aged under 16. This offence is punishable by 15 years imprisonment and has a standard sentence of 6 years.
A charge under Section 49B can be defended where:
- The child was 12 or older and the accused was no more than two years older than them.
- The child was 12 or older and the accused reasonably believed they were aged over 16.
Sex Offenders Register
The Victorian Sex Offenders Register was established in 2004 and is governed by the Sex Offenders Registration Act 2004. A person who is found guilty of certain types of sex offences in the ACT is required to register under this legislation and register their details with police, who then keep track of their whereabouts and activities in order to to minimise the chance of their reoffending.
Depending on the type and number of sex offences that a person has committed, they may be required to remain on the Register for 8 years, for 15 years, or forever.
If you require legal advice or representation in relation to the age of consent in Melbourne please contact Go To Court Lawyers.
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