Protections exist in relation to sexual activity of persons less than 18 years. Marriage, consent to sexual relations, age of consent, incest, sexual violence and sex work relating to young persons are governed by laws in Victoria.
The marriageable age for both males and females is 18 in most cases. There are, however, some qualifications and exceptions to this rule.
Of course, marriage is not permitted where one party is already married or the parties are within a prohibited relationship (e.g. brother and sister (s 23 Marriage Act 1961 (Cth) (“Marriage Act”)).
It is necessary to give one month’s notice of an intended marriage (s 42).
A person aged 16 or 17 may apply to a judge or a magistrate for an order granting permission to marry a particular person of marriageable age (s 12).
Where an under-age person seeks a court order giving permission for the marriage, the judge or magistrate must be satisfied that there are “exceptional and unusual circumstances”. Pregnancy is not a guarantee of obtaining an order. The court may look at the degree of maturity, length of the relationship, financial situation and degree of current independence. If an order is made, the marriage must take place within three months of that order.
Young people under the age of 18 must have the consent of their parents or guardians before they can marry (see the schedule to the Marriage Act for the identity of the person to give consent in the case of ex-nuptial children, adopted children or where the parents are divorced or dead).
Where parents or guardians have refused consent, an application can be made to a judge or a magistrate, who will enquire whether they have refused unreasonably (e.g. out of spite) or an insincere consideration of the problems. If they have unreasonably refused, the judge or magistrate can make an order allowing the marriage.
Under the Marriage Act, a judge or magistrate cannot hear an application for consent to the marriage unless a certificate is produced to show that the young person has received marriage counselling from a marriage counsellor (s 16(2A)).
The age at which a young person can enter into a sexual relationship varies according to a number of factors. The applicable legal principles were introduced into the Crimes Act 1958 (Vic) (“Crimes Act (Vic)”) by the Crimes (Sexual Offences) Act 2006 (Vic). The stated aims of this Act include:
1 the protection of all people from sexual assaults, coercion and exploitation;
2 the desire not to invade people’s privacy more than is necessary to protect them; and
3 to treat both sexes as far as possible in the same manner.
The basic principles are:
1 It is an offence to take part in or attempt to take part in an act of sexual penetration with a child under 12. The child’s consent is not a defence.
2 It is an offence to take part in or attempt to take part in such an act with a young person aged between 12 and 16 unless the young person consents; and
a the accused believed on reasonable grounds that the young person was 16 or over, or
b the accused was not more than two years older than the young person, or
c the accused believed on reasonable grounds at the time of the offence that they were married to the young person.
3 It is an offence for a person to maintain a sexual relationship with a young person under 16 who is not their spouse.
4 It is an offence to take part or attempt to take part in an act of sexual penetration with a young person of 16 or 17 who is under the accused’s care, supervision or authority and is not their spouse, unless the young person consents and the accused believed on reasonable grounds that:
a the young person was 18 or older, or
b that they were married to the young person (ss 45–49 Crimes Act (Vic)).
Acts of sexual penetration are prohibited between parents and children, other lineal descendants or step-children and between brothers and sisters and half brothers and sisters. For a more detailed discussion of this, see “Incest” in Sexual offences.
Protection by way of intervention orders is available for young people who are survivors of incest or family violence, which can be obtained under the Family Violence Protection Act 2008 (Vic). Applications for these orders can be made to the registrar at the local Magistrates’ Court or at the Children’s Court. The magistrate is empowered to make an interim order prohibiting the offender from entering the house or vicinity from the date the application is made.
The Act provides that children over the ages of 14 can apply, with the leave of the court, for an intervention order on their own behalf against a parent or other family member. A third party can apply, with the leave of the court, without parental consent and on behalf of a child for an intervention order.
A police officer can make an application for an interim order by telephone or fax to a magistrate after business hours or during the weekend (s 44). In practice, most police applications sought after hours are initiated as safety notices, which only require the approval of a police sergeant and may contain the same coditions as an interim order (s 29). (See also Family violence.)
Young women, in particular, should be aware of the likelihood of a protection application being taken out by DHHS where they are found in a situation where incest has occurred. Mandatory reporting requirements oblige some professionals (e.g. doctors, nurses, the police and teachers) to report sexual and physical abuse of children. Further information about the legal requirements of reporting child abuse may be obtained from Victoria Legal Aid or a community legal centre (see Legal services that can help).
Survivors of incest or family violence are entitled (if the offence has been reported to the police) to make application for compensation under the Victims of Crime Assistance Act 1996 (Vic) (see Assistance for victims of crime, and Sexual offences).
Under the Sex Work Act 1994 (Vic), it is an offence to cause or induce anyone under 18 to take part in prostitution, whether as a prostitute or as a client.
It is also an offence to receive payment knowing that it has been derived directly or indirectly from sexual services provided by a child or to enter into, or offer to enter into, an agreement for a child to provide sexual services in return for payment or in exchange for drugs (ss 5, 6, 7, 10).
Under the Act (ss 13, 15), a young person may be charged with soliciting for the purposes of prostitution in a public place or being found in an unlicensed brothel.