What is the age of consent?
Age of consent is the age at which a young person can legally consent to sexual activity. The age of consent in Australia varies across states and territories. It is a sexual offence to sexually penetrate or engage in any sexual activity with a person under the age of consent.
In Victoria, a person aged 16 years or more can legally consent to sexual activity with another person, except if the other person is in a position of authority. However, there are multiple exceptions to this law.
For example, “Romeo and Juliet” laws in Victoria permit consensual sexual activity between young individuals of similar ages while criminalising sexual activity between an adult and a child.
Age of consent laws strive to find a balance between acknowledging the emerging sexuality of young individuals while safeguarding children from exploitation and abuse by older individuals.
There are several sexual offences involving children under the Victorian Crimes Act 1958, which criminalise sexual activity with a person under the age of consent.
Definition of consent
To understand the application of age of consent laws, it is also essential to understand the definition of consent and the circumstances in which a person does and does not consent.
As of 30 July 2023, consent for the purposes of sexual activity is defined as ‘free and voluntary agreement’ (Crimes Act 1958 s36). Under section 37A:
Consent involves ongoing and mutual communication and decision-making between each person involved (that is, each person should seek the consent of each other person in a way and at a time that makes it clear whether they consent).
Consent may be given by words, non-verbal conduct, a course of non-verbal conduct, or any combination thereof. However, a person does not consent if they do not say or do anything to indicate consent to the act. That is, engaging parties must actively communicate consent.
Consent obtained through force, threats or intimidation does not constitute free and voluntary agreement, and a person does not consent just because they do not resist the act verbally or physically.
Circumstances in which a person does not consent
This definition of consent in the Crimes Act 1958 is qualified by a list of circumstances in which a person does not consent (s36AA). Accordingly, even if a person can legally consent to a sexual act, their actions or other circumstances may mean that sexual activity is non-consensual.
See ‘Consent: Rape & Sex Offences‘ for information about consent as it relates to sexual offences.
Offences against young people
If a person aged 16 years or more
A younger person aged at least 16 years of age can consent to sexual activity with any other person, except in certain circumstances, such as if the other person is in a position of trust or authority.
Offences if person aged 16 or 17 under care, supervision or authority
It is an offence for a person to engage in sexual activity with, or in the presence of, a child aged 16 or 17 under care, supervision or authority. An offence of this nature carries a maximum penalty of 5 to 10 years of imprisonment.
A person who has care, supervision or authority of a young person defined under section 37 of the Crimes Act 1958 includes, but is not limited to:
- Employers
- Parents & Teachers
- Youth workers
- Sports coaches
- Counsellors
- Health professionals
- Religious leaders
- Out of home carers
- A police officer on duty.
Offences related to sexual activity with a person under care, supervision or authority under the Crimes Act 1958 include:
- Sexual penetration of a child aged 16 or 17 under care, supervision or authority (s49C)
- Sexual assault of a child aged 16 or 17 under care, supervision or authority (s49E)
- Sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority (s49G)
- Causing a child aged 16 or 17 under care, supervision or authority to be present during sexual activity (s49I)
- Encouraging a child aged 16 or 17 under care, supervision or authority to engage in, or be involved in, sexual activity (s49L).
Defences to offence against a child aged 16 or 17 under care, supervision or authority
A defence (or exception) to a sex offence can be established for sexual acts with a young person aged 16 or 17 under care, supervision or authority if there is evidence that the accused:
- Reasonably believed that the young person was not under their care, supervision or authority at the time of the conduct (s49ZA).
- Reasonably believed that they were in a valid marriage or domestic partnership with the young person and the accused was not more than 5 years older at the time of the conduct (s49Z or 49Y).
A defence of ‘mistaken but honest and reasonable belief’ about a person’s age is not a defence to a sexual offence against a child aged 16 or 17 under an accused’s care, supervision or authority (see s49ZC).
Offences if a person is under the age of consent
Other offences related to sexual activity with children under the Crimes Act 1958 include:
- Sexual penetration of a child under the age of 12 (s49A)
- Sexual penetration of a child under the age of 16 (s49B)
- Sexual assault of a child under the age of 16 (s49D)
- Sexual activity in the presence of a child under the age of 16 (s49F)
- Causing a child under the age of 16 to be present during sexual activity (s49H)
- Encouraging a child under the age of 16 to engage in, or be involved in, sexual activity (s49K).
If a child is under 16 years old
A child aged under 16 years cannot consent to sexual activity unless the other person is not more than two years older than the child and the child is 12 years of age or more (s49U).
If a child is aged between 12 and 16 years old
If a child is aged 12 years or more, a defence or exception to a sexual offence can be established if:
- The accused person was not more than 2 years older than the child, and the sexual act was consensual (s49V & 49U).
- The accused person reasonably believed the child was 16 or older, and the sexual act was consensual (s49W).
If a child is less than 12 years old
A child who is less than 12 years old cannot consent to sexual activity under any circumstances (s49A).
A defence of ‘mistaken but honest and reasonable belief’ about a child’s age is not a defence to a sexual offence against a child under 12 (s49ZC).
What to expect if charged with a sex offence
Sexual offences are non-consensual sexual acts, such as oral sex, sexual penetration or other sexual behaviour, including grooming, rape, sexual assault and sexual abuse.
In cases involving young people under the age of consent, vulnerable people, or a person under care, supervision and authority, whether that person appears to indicate consent to sexual activity may be irrelevant to whether the conduct is criminalised.
In Victoria, sexual offences against children are serious and indictable under the Crimes Act 1958. Accordingly, police can, at any time and without a warrant, apprehend a person who they believe, on reasonable grounds, has committed a sexual offence.
Police recorded interview
If you have been charged with a sex offence, you are usually requested to attend a formal police interview. This interview is recorded and may later be used as evidence against you. Whether to comment on your record of interview requires careful consideration and could be the difference between a finding of guilty or not guilty to the charges. You have a right to contact a lawyer before your interview, and you must do so to ensure you have adequate support and advice.
Why you need an experienced sexual offence lawyer
The law is constantly changing, and there have been many amendments to sexual offence laws, especially concerning consent, penalties and criminal procedure. The Victoria Police have specialised units to investigate sexual offence allegations, and the Courts have specialist lists to manage these matters. Accordingly, a legal practitioner with specialist experience defending sex offence charges is essential to manage your matter effectively, navigate this complex area and achieve the best outcome. You should never leave the outcome to chance.
See here for more information about our sex offence lawyers or the ‘sex offence jury trial process‘.
Frequently asked age of consent questions
What is the age of consent in Australia?
Consent is generally defined as free and voluntary agreement to sexual activity, and the age at which a person can legally consent to sexual activity varies across States and Territories in Australia.
In New South Wales, Queensland, Victoria, Western Australia, the Northern Territory and the Australian Capital Territory, the age of consent is 16 years of age.
In Tasmania and South Australia, the age of consent is 17 years of age.
While there are certain exceptions to the age of consent rule, there are severe penalties for breaching the age of consent laws in Australia.
Can a 16-year-old date a person over 18 years old?
In Victoria, a 16-year-old can consent to sexual activity with another person unless they are under the other person’s care, supervision and authority.
For further information, see ‘Offences if a person aged 16 or 17 under care, supervision or authority’.
Is it legal for a 15-year-old to date an 18-year-old?
A 15-year-old cannot consent to sexual activity with an 18-year-old in Victoria.
A 15-year-old can only consent to sexual activity with a person not more than 2 years older than them at the relevant time.
For further information, see ‘Offences if a person is under the age of consent’.
Is it legal for a 14-year-old to date a 16-year-old?
A 14-year-old can consent to sexual activity with a 16-year-old in Victoria.
A 14-year-old can only consent to sexual activity with a person not more than 2 years older than them at the relevant time.
For further information, see ‘Offences if a person is under the age of consent’.
Can a 12-year-old consent?
In Victoria, a 12-year-old can only consent to sexual activity with a person not more than 2 years older than them at the relevant time. For further information, see ‘Offences if a person is under the age of consent’.
Can a child under 12 consent?
No, a child who is less than 12 years old cannot consent to sexual activity under any circumstances. For further information, see ‘Offences if a person is under the age of consent’.
