The main points
- This fact sheet is for young people and is designed to give you clear information about the legal boundaries for sex. If you have any questions, please speak to an adult that you trust.
- The law in this area is intended to allow young people to decide for themselves whether they want to engage in sexual activity, and to protect vulnerable people.
- This fact sheet outlines the law in Victoria. The law may be different in other states or territories.
What is sexual penetration?
In this fact sheet, we have used the phrase 'having sex'. The technical term is 'sexual penetration'. This does not just mean a penis being inserted into a vagina.
It also includes:
- a penis being inserted into the anus or mouth of a person, and
- inserting any object or part of a person’s body (including their fingers) into a vagina or anus.
As long as a body part or object is inserted to some extent, it is considered to be penetration – it does not have to go in the whole way. It can be penetration even if no semen is produced.
Sexual penetration does not include a medical procedure that you have consented to.
Unless you consent, it is an offence
If someone has sex with you and you do not consent, they can be charged with a crime, regardless of your age or the circumstances.
Copyright © 2015 Emmeline May, rockstardinosaurpirateprincess.com and Rachel Brian blueseatstudios.com
What is consent?
Consent is a word that is used regularly, but it is important to know what it means. If you consent to having sex with someone, this means that you have freely agreed to it.
You do not consent if:
- you have been forced, or you are afraid that someone will use force
- you are afraid that you will be harmed, or someone else will be
- you are prevented from leaving the place where you are (for example, if you are in a locked car or room)
- you are asleep, unconscious or so affected by alcohol or drugs that you are not able to freely agree
- you are not able to understand the sexual nature of the act (this may be the case if you have an intellectual disability for example)
- you are mistaken about the sexual nature of the act or the identity of the person
- you had believed that the act was for medical or hygienic purposes.
Are you under the age of 12?
If you are under the age of 12 and someone has sex with you, they may be charged with a crime.
The other person cannot claim in their defence that you 'consented' or that you were both married.
Are you aged 12 – 15?
If you are aged 12 – 15, a person who has sex with you may be charged with a crime, UNLESS you are married to them.
If they are charged, they can argue as a defence that you consented ONLY if:
- they reasonably believed that you were aged 16 or over, or
- they are within two years (24 months) of your age (e.g. you are 14 and they are 15), or
- they reasonably believed that they were married to you.
If they are found guilty, they may face higher penalties if you are under their 'care, supervision or authority'.
Are you aged 16 or 17?
If you are aged 16 or 17 and a person who has 'care, supervision or authority' for you has sex with you and you are not married, they may be charged with an offence.
If they are charged, they cannot argue in their defence that you consented, unless they can prove that at the time, they reasonably believed that:
- you were aged 18 or over, or
- they were married to you.
What does 'care, supervision or authority' mean?
You are considered to be under the 'care, supervision or authority' of the following people:
- your teacher
- your foster parent or legal guardian
- a minister of religion with pastoral responsibility for you
- your employer
- your youth worker
- your sports coach
- your counsellor or health professional
- a member of the police force on duty
- a person working in certain facilities (e.g. remand centre, youth residential centre, youth justice centre or prison).
Are you closely related?
It is a crime to have sex with certain people that you are closely related to. This applies to your parents, grandparents, step-parents, the de facto partner of your parent, your brother or sister and your half-brother or half-sister. This also applies to adoptive relationships.
Both of you could be charged with a crime. But if your relative makes you have sex with them, you are not guilty of an offence, even though they might be.
Are you aged 18 or over?
Even though you are an adult, the rules regarding consent still apply. Therefore, if you do not freely agree to having sex, the other person could be charged with an offence. This is the case even if you are in a relationship with the person or you have agreed to sex in the past.
So when is it okay to have sex?
If you are aged 12 – 15, you can have sex with someone who is within two years of your age, as long as you are not closely related to them.
If you are aged 16 or 17, you can have sex with someone older than you, unless they have some position of authority or are closely related to you.
What if there was no penetration?
There are a lot of crimes which do not involve sexual penetration. We have focused on sexual penetration in this fact sheet, but there are other crimes involving young people, including:
- if someone touches you indecently without your consent.
- if someone threatens to harm you so that they can have sex with you without your consent.
- if you are under the age of 16 and someone engages in an indecent act with you or in front of you and you are not married to them. Consent may be a defence in some cases.
- if you are aged 16 or 17 and someone with care, supervision or authority over you engages in an indecent act with you or in front of you, and you are not married to them. Consent may be a defence in some cases.
- if an adult tries to groom a young person under the age of 16 years for sexual conduct. Grooming involves communication (including electronic communication) by words or conduct.
This fact sheet sets out the law as at 3rd June 2014
Where to get more information, support or advice
- Contact your local doctor (GP)
- Contact Family Planning Victoria's clinics
- Visit Legal Aid Victoria