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.
What is marriage?
Marriage is a voluntary, legally binding agreement between two people to have a permanent relationship together. For two people to be married, a formal statement must be made in front of official witnesses who register the marriage with the authorities. It is necessary to give one month’s notice of an intended marriage (s 42 Marriage Act 1961 (Cth) (“Marriage Act”)).
In Victoria, people can marry if they are:
• aged 18 or older;
• aged 16 or 17 and they are marrying someone who is 18 or older, and they have a court order allowing the marriage, and their parents or guardian consent to the marriage.*
* See the Marriage Act for who can give consent for ex-nuptial children, adopted children or where the parents are divorced or dead.
Where a person under the age of 18 seeks a court order giving permission for them to marry, the judge or magistrate must be satisfied that there are “exceptional and unusual circumstances” in order to allow the marriage.
Pregnancy is not a guarantee of obtaining an order. The court may look at the maturity of the young person, the length of the relationship, their financial situation, and how independent they are. If an order is made, the marriage must take place within three months of that order.
Where parents or guardians have refused to consent to a marriage, an application can be made to a judge or a magistrate, who will enquire whether the parents have refused unreasonably (e.g. out of spite). 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)).
Marriage is not permitted where one person is already married or the two people are close relatives (close relatives are a parent, grandparent, child, grandchild, brother or sister) (s 23).
What is the age of consent?
The “age of consent” is when a young person can legally have sex. The age of consent for same-sex relationships is the same as for heterosexual relationships. The age at which a young person can legally 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).
Children under 12 cannot have sex, or be touched sexually, or witness a sexual act, even if they consent.
Young people aged between 12 and 15 cannot have sex, be touched sexually, or witness a sexual act, by someone who is more than two years older than them, even if they consent. For example, it is not a crime for a 15 year old to have sex with a 17 year old.
The age of consent in Victoria is 16. However, 16 and 17 year olds cannot have sex with, be touched sexually by, or witness a sexual act performed by someone who supervises or cares for them (e.g. a teacher, youth worker, or foster carer), even if they consent, unless the young person is married to the supervisor/carer (ss 45–49 Crimes Act (Vic)).
What is incest?
Incest is an act of sexual penetration between close relatives (e.g. between parents and children, or brothers and sisters (ss 50C–E Crimes Act (Vic)). See “Incest” in Sexual offences.
Under the Family Violence Protection Act 2008 (Vic) (“FVP Act”), a young person who is a survivor of incest or family violence can apply for a family violence intervention order against the offender.
To apply for a family violence intervention order, contact the registrar at the Children’s Court (www.childrenscourt.vic.gov.au) or at the local Magistrates’ Court (to locate the nearest Magistrates’ Court, visit www.mcv.vic.gov.au/going-court/find-court). Or, contact the police, who can apply for an intervention order on your behalf.
A magistrate can make an interim family violence intervention order if they believe a person is not safe and needs protecting immediately. An interim order can be made without the respondent (i.e. the offender) being at court or knowing about the order. An interim order can prohibit the offender from coming within 200 metres of where the survivor lives or works.
Under the FVP Act, young people over the age of 14 can apply (with the court’s permission) for an intervention order on their own behalf against a parent or other family member. Or, a third party can apply for an intervention order on behalf of a young person (with the court’s permission) without parental consent.
A police officer can apply for an interim order after business hours or on 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 conditions 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 the DHHS where they are found to be survivors of incest.
Mandatory reporting requirements oblige some professionals (e.g. doctors, nurses, the police and teachers) to report the sexual and physical abuse of children. For more information about the legal requirements of reporting child abuse, contact Victoria Legal Aid or a community legal centre (see Legal services that can help).
Survivors of incest or family violence can (if the offence has been reported to the police) apply to the Victims of Crime Assistance Tribunal (www.vocat.vic.gov.au) for compensation under the Victims of Crime Assistance Act 1996 (Vic) (see Assistance for victims of crime).
In Victoria, under the Sex Work Act 1994 (Vic) (“SW Act”), sex workers must be over the age of 18 to work legally. Clients must also be over 18.
It is an indictable offence to cause or induce anyone under 18 to take part in prostitution (s 5), whether as a prostitute or as a client. It is also an indictable offence to receive a payment knowing that it has been derived, directly or indirectly, from sexual services provided by a child (s 6); 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 (s 6). There are heavy penalties of 10 to 15 years in jail for anyone involved in child prostitution.
In Victoria, all street sex work is illegal. Under the SW Act (s 13), any person (regardless of age) can be charged with the offence of street prostitution if the police see them soliciting for the purposes of prostitution in a public place. Under section 11A of the SW Act, children over 18 months and under 18 years are not allowed in brothels. The penalty is up to 12 months in jail and/or 120 penalty units.
For more information about sex work, see Sex work.