The Age of Consent (Vic)

The laws about the age at which a young person can legally consent to sexual activity are different in each state and territory of Australia. In Victoria, like in most jurisdictions, the age of consent is currently 16. However, a person aged 16 or 17 cannot validly consent to sexual acts with a person who is in a position of authority over them, like a teacher or a sports coach.

Like many states, Victoria’s age of consent legislation contains has is sometimes called a Romeo and Juliette law. This is a law allowing consensual sex to occur between two young people who are similarly aged while criminalising sexual activity between an adult and a much younger person. The age of consent laws strive to balance the need for young people to be allowed to explore their developing sexuality and the need to protect children from being exploited and abused by older people.

What is consent?

Consent is defined in the Crimes Act as ‘free agreement’ (Section 36).

Any sexual activity without consent is a criminal offence regardless of the age of the participants. Criminal offences relating to sexual acts without consent in Victoria include rape and indecent assault.

The Crimes Act states that a person has not consented to sex if:

• They submit because of force or the fear of force;
• They submit because of the fear of harm of any type;
• They submit because they are unlawfully detained;
• They are asleep or unconscious;
• They are so intoxicated that they are incapable of consenting to the act;

What is the age of consent?

In Victoria, a person aged over 16 can validly consent to sex with any other person, except someone who is in in a position of authority over them. This means that the general age of consent in Victoria is 16.

A person who is aged between 12 and 16 can validly consent to sexual activity with a person who is not more than two years older than them

Persons aged 18 or older can validly consent to sex with a person who is in a position of authority over them. In this context, the age of consent is 18.

A person aged less than 12 cannot consent to sex with any other person.

Person in position of authority

It is an offence under Section 49C of the Crimes Act, for a person to engage in an act of sexual penetration with a child aged 16 or 17 who is under their care, supervision or authority. This offence can attract up to 10 years imprisonment.

Under Section 49E, it is an offence for a person in a position of care, supervision or authority to sexually touch a child. This offence can attract a term of up to 5 years imprisonment.

Persons who have care, supervision or authority over a child include the following:

• Parents and step-parents;
• Teachers;
• Youth workers;
• Employers;
• Sports coaches;
• Counsellors;
• Religious leaders;
• Health professionals;
• Out of home carers;
• Police on duty;

It is a defence to a charge under these sections if the accused was validly married to the child at the time of the alleged act (Section 49Y).

Sexual offences against children below the age of consent

The seriousness of sexual offences against children is determined, among other things, by the age of the child allegedly involved.

Child under 12

It is an offence to engage in an act of sexual penetration with a child aged under 12. This offence attracts a maximum of 25 years imprisonment and has a standard sentence of 10 years imprisonment (Section 49A).

Child under 16

It is an offence to engage in an act of sexual penetration with a child aged under 16 (Section 49B). This offence is punishable by up to 15 years imprisonment and has a standard sentence of 6 years imprisonment.

It is a defence to a charge under Section 49B where:

• The accused was not more than two years older than the child and the child was aged over 12;
• The accused reasonably believed that the child was aged over 16 and the child was in fact aged over 12.

Sex Offenders Register

In 2004, the Victorian Sex Offenders Register was established. It is governed by the Sex Offenders Registration Act 2004. Persons who are found guilty of certain sex offences are required to register on the Sex Offenders Register so that police can keep track of their whereabouts and activities. The aim of this is to reduce the chance of convicted sex offenders reoffending.

Depending on the type of offences and the number of sex offences a person has committed, they can be required to stay listed on the Sex Offenders Register for 8 years, for 15 years, or permanently.

If you require legal advice or representation please contact Armstrong Legal.