Various laws exist in Victoria to protect children from sexual offending. The age of both parties to sexual activity is relevant to whether or not an offence has occurred. In some instances, whether consent is an issue to be determined may also depend upon the nature of the relationship between the parties as well as their ages.
Children under 12
It is an offence for anyone to either sexually touch or penetrate a child under the age of 12.1 Consent or belief in consent does not provide a defence, as children under 12 are deemed unable to be able to give informed consent. Further, an honest but mistaken belief in age similarly does not provide a defence.
Children under 16
It is an offence for anyone to either sexually touch or penetrate a child under the age of 16.2 Two defences to the charge may however be relied upon.
Firstly, it is a defence to the charge if the party committing the touching or penetration was not more than two years older than the person under the age of 16, and they were consenting to the touching or penetration.
For example, someone aged 17 would have a defence to a charge of sexual penetration of a child under 16 if that child was 15.5 years old and consenting to the act.
Secondly, it is a defence to the charge if the party committing the touching or penetration reasonably believed that the child was 16 years of age or more. Whether that belief was reasonable must be proved by the accused person, on the balance of probabilities, looking at all the circumstances including what steps they took to ascertain the child’s age.3
For example, someone aged 20 would have a defence to a charge of sexual penetration of a child under 16, if they can establish on the balance of probabilities that their belief the child was older than 16 was reasonable and consenting to the act.
Children aged 16 & 17
Turning 16 might be considered the ‘age of consent’, however the law continues to protect children aged 16 and 17 where they are under another’s care, supervision or authority, and thus may be taken advantage of by persons who might exploit the power imbalance in the relationship.
These laws make it an offence for persons such as teachers, employer or other adults who through their relationship with the child are in a position of power, to sexually touch or penetrate a child aged 16 & 17.4
Defences to the charge may however be relied upon.
Firstly, it is a defence if the party committing the touching or penetration reasonably believed that the child was 18 years of age or more. Whether that belief was reasonable must be proved by the accused person, on the balance of probabilities, looking at all the circumstances including what steps they took to ascertain the child’s age.5
Secondly, it is a defence if the party committing the touching or penetration reasonably believed that the child was not under their care, supervision or authority.6
Further, it is an exception to the offence if the parties are married, not more than five years apart in age, and they became married prior to the child being under care, supervision or authority.7
Importantly, different laws regarding the ages of the parties apply to digital material of a sexual nature (known as child abuse material). The above is only applicable to sexual acts between the parties. Whilst the acts themselves may not be an offence, the filming and distribution of them may be.
1 Sections 49A, 49D & 49U
2 Sections 49B & 49D
3 Section 49W
4 Sections 49C & 49E
5 Section 49X
6 Section 49ZA
7 Section 49Y
