In Australia, the law as to what age a young person can legally have sex is different in each state and territory. In Victoria, the general age of consent is 16. The Crimes Act 1958 sets out various criminal offences involving sexual activity between an adult and a person who is below the age of consent. This page deals with the age of consent and child sexual offences in Victoria.
Age of consent and Romeo and Juliette laws
Like many jurisdictions, Victoria has what is sometimes referred to as a ‘Romeo and Juliette’ law. This means that two young people of a similar age can lawfully have sex, while sex between an adult and a young person is unlawful.
Under these laws, a person who is aged between 12 and 16 can consent to sexual activity with a person who is not more than two years older than them. A person younger than 12 cannot consent to sex validly with anyone.
Romeo and Juliette laws seek to find a balance between recognizing that young people are developing sexually and protecting young people from exploitation and abuse by older people.
Consent
Under section 36 of the Crimes Act 1958, consent means ‘free agreement’.
A person is not taken to have consented to a sexual act if they agreed because of force or the fear of force, a fear of harm, or because they unlawfully detained. A person is not taken to have consented if they were asleep or unconscious or so intoxicated that they could not lawfully consent to sex.
Sexual contact in the absence of consent is always an offence regardless of the ages of the people involved.
General age of consent is 16
In Victoria, a person aged 16 or older can lawfully consent to sex with any other person (who is also over the age of 16), except a person who has lawful authority over them – such as a teacher or coach. To validly consent to sex with a person who is in a position of control of them, a young person must be 18.
Sexual offences involving children
In Victoria, the Crimes Act 1958 sets out a range of criminal offences that involve sexual contact with young people.
Sexual offences by person in position of authority
Under section 49C of the Crimes Act 1958, a person who is in a position of supervision or control over a young person aged 16 or 17 and engages in sexual penetration with that young person, commits an offence that is punishable by a maximum of 10 years imprisonment.
Under section 49E of the Crimes Act 1958, a person who is in a position of supervision and control over a young person aged 16 or 17 and sexually touches the young person, commits an offence that is punishable by a maximum of five years imprisonment.
Sex with child under 12
Under section 49A of the Crimes Act 1958, a person commits an offence punishable by a maximum of 25 years imprisonment if they engage in sexual penetration with a child under 12.
Sex with child under 16
Under section 49B of the Crimes Act 1958, a person commits an offence punishable by a maximum of 15 years imprisonment if they engage in sexual penetration with a child under 16.
However, it is a defence to this charge if:
- The accused was no more than two years older than the child and the child was aged over 12; or
- The accused had a reasonable belief that the child was aged over 16, and the child was in fact aged over 12.
Other child sex offences
The Crimes Act 1958 also contains other offences involving sexual contact with a person under the age of consent. These include sexual assault of a child under 16 (section 49D) sexual activity in the presence of a child under 16 (section 49F) and encouraging a child under 16 to engage in sexual activity (section 49K).
Sex Offenders Register
Persons who are found guilty of particular child sexual offences in Victoria are required to register on the Sex Offenders Register. This Register was established in 2004 and is designed to assist police to keep track of the whereabouts of known sex offenders to make it less likely they will reoffend.
A sex offender may be required to be on the Sex Offenders Register for eights year, for 15 years, or forever, depending on the nature and number of sex offences they have been found guilty of.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
