Victoria Australia - Age of Consent

Please support our sponsor -- they provide free web-space for this site!

coolteensites.net
[Cool Teen Sites]

 

AN EMAIL WE RECEIVED:

Hello, I was just browsing through your site when I noticed someone had asked a question regarding the Victorian age of consent laws. I think the reader's misunderstanding results more from a misunderstanidng of the Australian federal system of government than from a misunderstanding of the laws, as basically the reader had got the law correct.

The law regarding the regulation of sexual activity in Victoria is mostly found in the Crimes Act 1958. This is a Victorian statute. (Nb. Copies of Australian Statutes and cases can be found online at www.austlii.edu.au -
a database maintained by the University of new South Wales).

Until recently (the nick Toonan appeal to the International Court of Justice concerning homosexual acts in Tasmania in 1994) there was no federal legislation regulating sexuality per se. The federal government had the constitutional power to legislate concerning marriage, but not sex.

Therefore the age of consent, being basically a criminal matter, was constitutionally in the jurisdiction of the states, and the age of consent is governed only by state law. Each state is a separate jurisdiction and has its own criminal law. The Federal legislature does not have the power to legislate concerning the common criminal law.

In some states the Criminal Law has been codified (Queensland, Tasmania and Western Australia). Your reader has referred to a Criminal Consolidation Act in 1935 but has not stated which jurisdiction this act derives from. The criminal law has never been codified in Victoria. The Crimes act 1958 is a partial codification of the criminal law of Victoria but is is always read in the light of the common law. The 1935 Act, whatever it may be, does not I believe form a part of the law of victoria.

So, the laws governing sexual activity in victoria are derived from the Crimes Act 1958 as amended and basically mean that the age of consent is 18. There is the 2 year period, which means that a person who is 16 can have sex with someone who is 17, and people over the age of 18 can have sex with anyone else over 18.

The only federal legislation which impacts upon state age of consent laws is the Human Rights (SExual Conduct) Act 1994 of the Federal Parliament, which ratifies a UN Treaty concerning the right to privacy. Federal Laws override State laws (presuming the federal parliament has the constitutional power to make those laws) and so this legislation basically de-criminalised homosexual activity in Tasmania. This act however does not affect the ability pf the States to determine their own ages of consent. The interaction between the Federal and the State laws here is a constitutional issue as the laws are made under different heads of power and really isn't important.

Hope this is helpful.

AND THE NEXT EMAIL:

Dear "age of consent",
Hello, I am a 15 year old Australian whom has a lot of information given to me about things like age of sexual consent and I have read in a book that the age for sexual consent is as follows:
Under 12- Not allowed to have sexual intercourse even with persons consent.
13-15 - Allowed to have sexual intercourse but only with someone two years older or less
16 and over- Allowed to have sexual intercourse but only with persons consent.
I have read this in a book that I got off a school counselor and she said that it was up to date. And it read as above. My mother also says that you have to be 18. So now reading your web site I am so confused but I believe you should just double check your Australia- Victoria ages. I hope that you can understand what I have wrote and I'm sorry it's not in very "grown up" wording but I tried my best. Thank you for your time






EDITOR RESPONSE:

Australia has been a difficult area for us to confirm.  We don't agree with the highlighted statement in the above email. 

According to the ACT Consolidated Legislation, at the link provided by the above author, this is what we are finding (http://www.austlii.edu.au/cgi-bin/disp.pl/au/legis/act/consol%5fact/ca190082/s92e.html?query=%7e+intercourse)

CRIMES ACT 1900 - SECT 92E

92E. Sexual <<intercourse>> with a young person

(1) A person who engages in <<sexual intercourse>> with another person who is
under the age of 10 years is guilty of an offence punishable, on conviction,
by imprisonment for 17 years.

(2) A person who engages in <<sexual intercourse>> with another person who is
under the age of 16 years is guilty of an offence punishable, on conviction,
by imprisonment for 14 years.

(3) It is a defence to a prosecution for an offence under subsection (2) if
the defendant establishes that:

   (a)  he or she believed on reasonable grounds that the person upon whom the
        offence is alleged to have been committed was of or above the age of
        16 years; or

   (b)  at the time of the alleged offence-

        (i)    the person on whom the offence is alleged to have been
               committed was of or above the age of 10 years; and

        (ii)   the defendant was not more than 2 years older; and that that
               person consented to the <<sexual intercourse>>.

PART IIIA PART IIIA SEXUAL OFFENCES
92. Interpretation
In this Part, "sexual intercourse" means:

   (a)  the penetration, to any extent, of the vagina or anus of a person by
        any part of the body of another person, except where that penetration
        is carried out for a proper medical purpose or is otherwise authorised
        by law;

   (b)  the penetration, to any extent, of the vagina or anus of a person by
        an object, being penetration carried out by another person, except
        where that penetration is carried out for a proper medical purpose or
        is otherwise authorised by law;

   (c)  the introduction of any part of the penis of a person into the mouth
        of another person;

   (d)  cunnilingus; or

   (e)  the continuation of sexual intercourse as defined in paragraph (a),
        (b), (c) or (d).


And finally:

CRIMINAL LAW CONSOLIDATION ACT 1935 - SECT 49

49 Unlawful sexual <<intercourse>>

49. (1) A person who has sexual <<intercourse>> with any person under the age of twelve years shall be guilty of an offence and liable to be imprisoned for life.
(3) A person who has sexual <<intercourse>> with a person of or above the age of twelve years and under the age of seventeen years shall be guilty of an offence and liable to be imprisoned for a term not exceeding seven years.
(4) It shall be a defence to a charge under subsection (3) to prove that-
(a) the person with whom the accused is alleged to have had sexual <<intercourse>> was, on the date on which the offence is alleged to have been committed, of or above the age of sixteen years; and
(b) the accused-
(i) was, on the date on which the offence is alleged to have been committed, under the age of seventeen years; or
(ii) believed on reasonable grounds that the person with whom he is alleged to have had sexual <<intercourse>> was of or above the age of seventeen years.
(5) A person who, being the guardian, schoolmaster, schoolmistress or teacher of a person under the age of eighteen years, has sexual <<intercourse>> with that person shall be guilty of an offence and liable to be imprisoned for a term not exceeding seven years.
(6) A person who, knowing that another is by reason of intellectual disability unable to understand the nature or consequences of sexual <<intercourse, has sexual intercourse>> with that other person is guilty of an indictable offence.
Penalty: Imprisonment for a term not exceeding seven years.
(7) <<Consent to sexual intercourse>> is not a defence to a charge of an offence under this section.
(8) This section does not apply to sexual <<intercourse>> between persons who are married to each other.

 

CRIMES ACT 1958 - SECT 47A

Sexual relationship with child under the age of 16
47A. Sexual relationship with child under the age of 16

(1) A person who maintains a sexual relationship with a child under the age of
16 to whom he or she is not married is guilty of an indictable offence.
Source:  Victorian Consolidation Legislation 
(http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s47a.html)

 

CRIMES ACT 1958 - SECT 49

Indecent act with 16 year old child
49. Indecent act with 16 year old child
(1) A person must not wilfully commit, or wilfully be in any way a party to
the commission of, an indecent act with or in the presence of a 16 year old
child to whom he or she is not married and who is under his or her care,
supervision or authority.
Penalty: Level 6 imprisonment (5 years maximum).
(2) Consent is not a defence to a charge under sub-section (1) unless at the
time of the alleged offence the accused believed on reasonable grounds-
   (a)  that the child was aged 17 or older; or
   (b)  that he or she was married to the child.
Source:  Victorian Consolidated Legislation
(http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s49.html)


THEREFORE, we stand by our entry that the age of sexual consent for male-female intercourse in 17.  Because even if you read the law to be 16, you will see the crimes act of 1958 section 49 clearly forbids any "indecent acts" with a person who has not reached the age of 17.     March 30,2002.

SOURCE DATA:  http://www.austlii.edu.au/

 

 

 

Legal Statutes of Victoria:   http://www.dms.dpc.vic.gov.au/sb/sbhome.html?

From:  http://www.dms.dpc.vic.gov.au/sb/2000_Act/A00779.html
5.    New section 45 substitutedFor sections 45 and 46 of the Principal Act substitute--
"45. Sexual penetration of child under the age of 16
(1) A person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence.
(2) A person who is guilty of an offence against sub-section (1) is liable--
(a) if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, under the age of 10, to level 2 imprisonment (25 years maximum); or

(b)if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, aged between 10 and 16 and under the care, supervision or authority of the accused, to level 4 imprisonment (15 years maximum); or

(c)in any other case, to level 5 imprisonment (10 years maximum).
(3)Sub-section (1) does not apply to an act of sexual penetration if--
(a) the child is aged between 10 and 16; and
(b) the persons taking part in the act are married to each other.
(4) Consent is not a defence to a charge under sub-section (1) unless at the time of the alleged offence the child was aged 10 or older and--
(a) the accused believed on reasonable grounds that the child was aged 16 or older;or
(b) the accused was not more than 2 years older than the child; or
(c) the accused believed on reasonable grounds that he or she was married to the child.
(5) A circumstance of aggravation described in sub-section (2) is not an element of
an offence against sub-section (1) but must be stated in the presentment.
(6)An accused who takes issue with a circumstance of aggravation described in sub-section (2) and who wishes to have the matter determined on the trial may do so by pleading not guilty to the offence with which he or she is charged
even if he or she does not take issue with any acts, facts, matters or circumstances relied upon by the prosecution to support a finding of guilt.
(7) A circumstance of aggravation described in sub-section (2)--
(a) is to be determined by the jury if the accused pleads not guilty to the offence; and
(b) is to be determined by the trial judge if the accused pleads guilty to the offence.
(8) An offender who pleads not guilty to an offence against sub-section (1) is to
be taken to have pleaded guilty to the offence for the purposes of section
5(2)(e) of the Sentencing Act 1991 if--
(a) he or she--
(i) took issue with a circumstance of aggravation described in sub-section (2); and
(ii) did not take issue with any acts, facts, matters or circumstances relied upon by the prosecution to support a finding of guilt; and
(b) the circumstance of aggravation is not proved.
(9) For the avoidance of doubt it is declared that it is the intention of the Parliament that an offence against sub-section (1) is not an offence to which section 53(1) of the Magistrates' Court Act 1989 applies (indictable offences triable summarily) even though the offence is punishable by level 5 imprisonment where a circumstance of aggravation described in sub-section (2)
is not present.".

 

 

 

Receieved by Email 03/18/01 -- Anyone want to help with this one?
"I am concerned about the conflicting laws which are stated federally in australia and then in the state of victoria in australia.

First of all in your website www.ageofconsent.com the explanation page concerning the legislation of the australian state of victoria says the laws governing the age of consent is derived from the Crime Act of 1958.

I can't find a copy of this Act anywhere on the web (which is what i believe should be provided in your website), and the laws that your website state say that they are derived from the Criminal or Common Law Consolidation Act of 1935; which states that under Section 49 'Unlawful Sexual Intercourse'

(3)A person who has sexual intercourse with a person of or above the age of twelve (12) years and under the age of seventeen (17) years shall be guilty of an offence and liable to be imprisoned for a term not exceeding seven years.

(4) It shall be a defence to a charge under subsection (3) to prove that
a) the person with whom the accused is alleged to have had sexual intercourse was, on the date on which the offence is alleged|
to have been committed, of above the age of sixteen (16) years ; and b) the accused -
(i) was, on the date on which the offence is alleged to have been committed, under the age of seventeen (17) years ; or
(ii) believed on reasonable grounds that the person with whom he is alleged to have had sexual intercourse was of or above the age of seventeen (17) years.
|
(5) A person who, being the guardian, schoolmaster, schoolmistress or teacher of a person under the age of eighteen (18) years, has sexual intercourse with that person shall be guilty of an offence and liable to be imprisoned for a term not exceeding seven years.

All this basically means that
(a) someone of and above the age of 18 can't legally have sex with someone under the age of 17, namely between 12 and 16.
(b) someone of and above the age of 18 who is in a position of authority (e.g. teacher) over someone under the age of 18 also can't legally have sex with this somebody who is under the age of 18.

HOWEVER, contradicting this is the explanation page your website has for the Age of Consent for Australia. It states under B.Definition Of The Child In Laws And Regulations, Article 1, section (f) Sexual Consent

135. In Victoria the law does not provide an age of consent for heterosexual or homosexual sex as such, but the Crimes Act 1958 provides a series of offences where sexual penetration occurs with a child between 10 and 16 years. There is no offence of sexual penetration with children of 16 or 17 years, except where a person is in a position of care, supervision or authority over the child.

This clearly states in contradiction that there is no offense of sexual penetration with someone of 16 or 17 years old and that the laws provided under the Crimes Act 1958 (of which i have not found a copy of) are for circumstances where sexual penetration occurs with someone between 10 and 16 years.

Clearly the Federal standing for Victoria completely contradicts the Victorian Legislation. I would be grateful if this disrepency is looked into thoroughly and cleared up, and the results posted in your website. However, i would really appreciate it if i was sent a personal reply back to this email address.

Thank You kindly.

 

 

Source:  http://www.interpol.int/Public/Children/SexualAbuse/NationalLaws/

Australia - Australie - Australia Canberra

IV. The Legislation of the Australian State of Victoria
1. Overview. Five Acts have made substantial amendments to sexual offences since the proclamation of the Crimes
Act 1958 on 1 April 1959. They are:

a.The Rape Offences (Proceedings) Act 1976 No. 8940/1976;
b.The Crimes (Sexual Offences) Act 1980 No. 9509/1980;
c.The Crimes (Sexual Offences) Act 1991 No. 8/1991;
d.The Crimes (Rape) Act 1994 No.81/1991 and
e.The Sentencing (Amendment) Act 1993 No 41/1993.

2. In addition, legislation in relation to stalking, prostitution and unclassified films has been introduced and/or amended in recent times.

I. Ages for legal purposes
Age of Majority Act 1971 (State) :
" (3). (1) Subject to this Section, a person of or above the age of eighteen (18) years shall be sui juris and of full age and capacity, and notwithstanding any rule of law, no deficiency of juristic competence or capacity shall attach to, or be attributed to, any such person. "

Marriage Act 1961 (Federal) :
" (5). (1) In this Act, unless the contrary intention appears :
‘minor’ means a person who has not attained the age of eighteen (18) years ;
(11). Subject to Section 12, a person is of marriageable age if the person has attained the age of eighteen (18) years. "

II. Rape
‘Rape’, Section 48 of the " Common Law Consolidation Act 1935 " :

" A person who has sexual intercourse with another person without the consent of that other person-
a) knowing that that other person does not consent to sexual intercourse with him ; or
b) being recklessly indifferent as to whether that other person consents to sexual intercourse with him,
-shall (whether or not physical resistance is offered by that other person) be guilty of rape and liable to be imprisoned for life. "

III. Other forms of child sex abuse
CRIMINAL LAW CONSOLIDATION ACT (1935) (STATE)
Section 4 of the " Common Law Consolidation Act 1935 ", Definition of sexual intercourse :
" ‘Sexual Intercourse’ includes any activity (whether of a heterosexual or homosexual nature) consisting or involving :
a) penetration of the labia majora or anus of a person by any part of the body of another person
b) fellatio ; or
c) cunnilingus.
Cunnilingus is generally held to include the licking or sucking of the vagina or vulva, including the labia majora, with tongue or mouth. "

‘Unlawful Sexual Intercourse’, Section 49 of the " Common Law Consolidation Act 1935 " :
" (1) A person who has sexual intercourse with any person under the age of twelve (12) years shall be guilty of an offence and liable to be imprisoned for life.
(2) (...)
(3) A person who has sexual intercourse with a person of or above the age of twelve (12) years and under the age of seventeen (17) years shall be guilty of an offence and liable to be imprisoned for a term not exceeding seven years.
(4) It shall be a defence to a charge under subsection (3) to prove that : 
a) the person with whom the accused is alleged to have had sexual intercourse was
, on the date on which the offence is alleged to have been committed, of above the age of sixteen (16) years ; and
b) the accused -
(i) was, on the date on which the offence is alleged to have been committed, under the age of seventeen (17) years ; or
(ii) believed on reasonable grounds that the person with whom he is alleged to have had sexual intercourse was of or above the age of seventeen (17) years.
(5) A person who, being the guardian, schoolmaster, schoolmistress or teacher of a person under the age of eighteen (18) years, has sexual intercourse with that person shall be guilty of an offence and liable to be imprisoned for a term not exceeding seven years.
(6) A person who, knowing that another is by reason of intellectual disability unable to understand the nature or consequences of sexual intercourse, has sexual intercourse with that other person is guilty of an indictable offence.
Penalty : Imprisonment for seven years.
(7) Consent to sexual intercourse is not a defence to a charge of an offence in this section. 
(8) This section does not apply to sexual intercourse between persons who are married to each other."

‘Indecent Assault’, Section 56 of the " Common Law Consolidation Act 1935 " :
" A person who indecently assaults another shall be guilty of an offence and liable to be imprisoned for a term not exceeding eight years or, where the victim was at the time of the commission of the offence under the age of twelve (12) years, for a term not exceeding ten years. "

‘Consent no defence in certain cases’, Section 57 of the " Common Law Consolidation Act 1935 " :
" (1) No person under the age of eighteen (18) years shall be deemed capable of consenting to any indecent assault committed by any person who is his or her guardian, teacher, schoolmaster or schoolmistress.
(2) Subject to subsection (3), no person under the age of seventeen (17) years shall be deemed capable of consenting to any indecent assault.
(3) Where the person is between the age of sixteen (16) and seventeen (17) years, his or her consent shall be a defence to a charge of indecent assault if the accused proves that at the time of the indecent assault
a) he or her was under the age of seventeen (17) years ; or
b) he or she believed on reasonable grounds that the person was of or above the
age of seventeen (17) years. "

‘Acts of Gross Indecency’, Section 58 of the " Common Law Consolidation Act 1935 " :
" (1) Any person who, in public or in private-
a) commits any act of gross indecency with, or in the presence of, any person under the age of sixteen (16) years ;
b) incites or procures the commission by any such person of any act of gross indecency with the accused, or in the presence of  the accused, or with any other person in the presence of the accused.
c) is otherwise a party to the commission of any act of gross indecency by or with, or in the presence of, any such person, or by or with any other person in the presence of any such person, or by any such person with any other person in the presence of the accused,
-shall be guilty of an offence and liable for a first offence to be imprisoned for a term not exceeding three years and for any subsequent offence to be imprisoned for a term not exceeding five years.

(2) It is no defence to a charge under this section that the act of indecency was committed with the consent of the person concerned."

‘Offence if person for prurient purposes incites or procures commission by child of indecent act,
etc.’, Section 58A of the " Common Law Consolidation Act 1935 " :
" (1) A person who with a view to gratifying prurient interest (whether of that person or some other person)-
a) incites or procure the commission by a child of an indecent act ; or
b) causes or induces a child to expose any part of his or her body,     -shall be guilty of an indictable offence and liable for a first offence to be imprisoned for a term not exceeding two years and for any subsequent offence to be imprisoned for a term not exceeding three years.

(2) Subsection (1) applies whether events referred to in the subsection occur in public or in private or with or without the consent of the child.
(3) In this section, " child " means a person under the age of sixteen (16). "

‘Abduction of male or female person’, Section 59 of the " Common Law Consolidation Act 1935 " :
" A person who takes away by force, or detains against his will, any other person-
a) with intent to marry, or to have sexual intercourse with that other person ;
b) with intent to cause that other person to be married to, or to have sexual intercourse with a third person,
-shall be guilty of an offence and liable to be imprisoned for a term not exceeding fourteen years. "

‘Incest’, Section 72 of the " Common Law Consolidation Act 1935 " :
" Any persons who, being related, either as parent and child or as brother and sister, have sexual intercourse with each other shall be guilty of incest and liable to be imprisoned for a term not exceeding seven years. "

‘Offences involving sexual intercourse’, Section 73 of the " Common Law Consolidation Act 1935 " :
" (1) For the purposes of this Act, sexual intercourse is sufficiently proved by proof of penetration.
(2) No person shall, by reason of his age, be presumed incapable of sexual intercourse.
(3) No person shall, by reason only of the fact that he is married to some other person, be presumed to have consented to sexual intercourse with that other person.
(4) No person shall, by reason only of the fact that he is married to some other person, be presumed to have consented to an indecent assault by that other person.
(5) For the purposes of the provisions of this Act dealing with sexual offences, agreement to an act on the basis that it is necessary for the purpose of medical diagnosis, investigation or treatment, or for the purpose of hygiene, is not consent to that act for another purpose. "

‘Persistent sexual abuse of a child’, Section 74 of the " Common Law Consolidation Act 1935 " :
" (1) A person may be charged with and convicted of the offence of persistent sexual abuse of a child
(2) Persistent sexual abuse of a child consists of a course of conduct involving the commission of a sexual offence against a child on at least three separate occasions (whether the offence is of the same nature on each occasion or differs from occasion to occasion).
(3) A person does not however commit the offence of persistent sexual abuse of a child unless the occasions on which a sexual offence is committed against the child fall on at least three days.
(4) A charge of persistent sexual abuse of a child-
a) must specify with reasonable particularly when the course of conduct alleged against the defendant began and when it ended ; and
b) must describe the general nature of the conduct alleged against the defendant and the nature of the sexual offences alleged to have been committed in the course of that conduct,
-but the charge need not state the dates on which the sexual offences were committed, the order in which the offences were committed, or differentiate the circumstances of commission of each offence.
(5) - (10) (...)

(11) In this section -
* ’child’ means a person under the age of sixteen (16) years ;
* ’sexual offence’ means an, offence against section 48, 49, 56, 58, 58A or 72, or an
attempt to commit, or an assault with intent to commit, any of those offences. "

IV. Child prostitution
‘Causing or inducing a child to take part in prostitution’, Section 5(1) of the " Prostitution Control Act 1994 (102/1994) " :

This offence applies where a child is caused or induced to take part in prostitution as the prostitute or client or in any other capacity, or to continue to take part in such acts.  Penalty : 7 years imprisonment.

‘Obtaining payment for sexual services provided by a child’, Section 6(1) of the " Prostitution Control Act
1994 (102/1994) ", Section 8(1) of the " Prostitution Regulation Act 1986 (124/1986) " :
Any person who receives payments knowing that it has been derived either in full or in part, directly or indirectly, from sexual services provided by a child, commits this offence, unless it is in the ordinary course of a business unrelated to prostitution.
Penalty : 7 years imprisonment.

‘Agreement for provision of sexual services by a child’, Section 7(1) of the " Prostitution Control Act
1994 (102/1994) ", Section 9(1) of the " Prostitution Regulation Act 1986 (124/1986) " :
This offence applies to a person who enters into, or offers to enter into, an agreement for a child to provide sexual services either:
- to or for that person; or
- for another person
in return for :
- payment; or
- in exchange for drugs of dependence.
It is possible for the offence to be committed by entering into or offering to enter into the agreement for both payment and in exchange for drugs. The services may also be intended for more than one person, (for example, the sexual services may be provided to both the defendant and another).  Penalty : 7 years imprisonment.

‘Forcing a person into or to remain in prostitution’, Section 8 (1) (a), (b), (c) or (d), respectively, of the
" Prostitution Control Act 1994 (102/1994) ", Section 10 (a), (b), (c) or (d), respectively, of the
" Prostitution Regulation Act 1986 (124/86) " :
This offence only applies to complainants who are aged eighteen (18) years or more at the time of the offence and is committed in any one of the following four ways; namely a person must not with intent to induce another person to engage or continue to engage in prostitution:
(a) assault or threaten to assault that person or any other person; or
(b) intimidate that other person or any other person; or
(c) supply or offer to supply a drug of dependence to that person or any other person; or
(d) make a false representation or use any false pretence or other fraudulent means.
Penalty : 7 years imprisonment.

‘Forcing a person to provide financial support out of prostitution’, Section 9 (1) (a), (b), or (c), respectively,
of the " Prostitution Control Act 1994 (102/1994) ", Section 11 (a), (b), or (c), respectively, of the
" Prostitution Regulation Act 1986 (124/1986) " :
The offence is essentially the same as s.8 of the Prostitution Control Act 1994 (see Item 75 above). The difference is that the assaulting etc. occurs with the intent of inducing another to provide or continue to provide the defendant with payment/s, directly or indirectly from prostitution engaged in by the complainant. It is also not an offence under this section to use false pretences.
This offence relates to complainants aged eighteen (18) years or more at the time of the offence.
It is an offence for a person with intent to induce another person to provide, or continue to provide, him or her with a payment or payments derived, directly or indirectly, from prostitution engaged in by that other person to:
(a) assault or threaten to assault that person or any other person; or
(b) intimidate that other person or any other person; or
(c) supply or offer to supply a drug of dependence to that person or any other person.
Penalty : 7 years imprisonment.

‘Living on earnings of prostitution’, Section 10 (1) of the " Prostitution Control Act 1994 (102/1994) ",
Section 12(1) of the " Prostitution Regulation Act 1986 (124/1986) " :
It is an offence to live either wholly or partly on the earnings of prostitution. It matters not whether the prostitution is carried out by a child or an adult.
Defences/Exemptions:
(a) The defendant will not be guilty of an offence under this section if there is a current licence in force granted under Part 3 of the Prostitution Control Act 1994 and a permit as required by the Planning and Environment Act 1987 for the use or
development of the land for the purposes of the business.
(b) Prostitution Control Act 1994 - It is a defence for the defendant to prove that s/he did not hold a relevant position (whether in his or her own right or on behalf of any other person) in the prostitution service providing business or did not
exercise a significant influence over or with respect to the management or operation of that business.
(c) Prostitution Regulation Act 1986 - The defendant shall, unless the court is satisfied to the contrary, be guilty of such offence, if it is proved to the court that:
(i) the person was living with, or was habitually in the company of a prostitute; or
(ii) the person exercised control, direction or influence over the movements of a prostitute in such manner to show that the person was aiding, abetting, procuring, or compelling the prostitute to prostitute himself or herself.
Penalty : 4 years imprisonment.

’Allowing a child to take part in prostitution’, Section 11 (1) of the " Prostitution Control Act 1994
(102/1994) ", Section 7(1) of the " Prostitution Regulation Act 1986 (124/1986) " :
This section applies to persons who own or occupy any premises or who manage or assist in the management of any premises. This section also applies to a child who is acting as either a client, a prostitute or taking part in any act of prostitution in any capacity.

" Prostitution Control Act 1994 " only :
The accused will be presumed to have allowed a child to enter or remain on those premises if it is proved that -
(a) the premises was used for the operation of a brothel and for which a permit was required under the " Planning and Environment Act 1987 " for its use or development for those purposes; and
(b) the child was on those premises for the purpose of taking part in an act of prostitution.
-unless the accused satisfies the court on the balance of probabilities that s/he did not know, and could not reasonably have known, that a child was on those premises for that purpose at the time of the commission of the alleged offence.

" Prostitution Regulation Act 1986 " only :
If it is proven that a child was on a premises which was a brothel (within the meaning of Part 4 of the Act), any person who owns, occupies, manages or assists in the management of those premises, is guilty of an offence against this section, unless s/he satisfies the court on the balance of probabilities that the child was not on the premises for the purposes of taking part in an act of prostitution.

This is substantially less than the proof required under the Prostitution Control Act; however, interviewing members should approach the investigation as though the higher standard were relevant, by way of proving knowledge that the child was on the premises for the purpose of taking part in an act of prostitution.
Penalty : 4 years imprisonment.

V. Child pornography
Victorian Statutory Offences relating to pornography and the aspects applicable to the exploitation of children are now divided between two Acts of Parliament; the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 and the Crimes Act 1958.

OFFENCES PRIOR TO 5/12/95
The Classification of Films and Publications Act 1990, which was repealed in December, 1995, still has
consequences relating to historical indictable offences committed during its period of enactment (30/11/90 to
5/12/95). This situation is only likely to arise in the offence of Procure Child to Make Objectionable Film contrary to
section 45 of that act, which is discussed below.

‘Production of child pornography’, Section 68 of the " Crimes Act 1958 (6231/58) " :
A person who prints or otherwise makes or produces child pornography is guilty of a indictable offence which appears in the Crimes Act.   Penalty : Level 5 Imprisonment

‘Procurement of a minor for child pornography’, Invite Minor : Section 69(a) of the " Crimes Act 1958
(6231/58) ", Procure Minor : " Section 69(b) Crimes Act 1958 (6231/58) ",:
This offence relates to inviting a minor (child under 18) to be in any way concerned in the making or producing of child pornography or the procuring of a child to make child pornography. Note the reference to minor (a child under 18) where child pornography requires a subject who is or appears to be under the age of 16 years.   Penalty : Level 10 Imprisonment

Information :
Invite minor 
The (Defendant) at (place) in the State of Victoria on/between (date/s) did invite, (victim), a minor under the age of 18 years to be concerned in the (making/production) of child pornography.

Procure minor
The (Defendant) at (place) in the State of Victoria on/between (date/s) did procure, (victim), a minor under the age of eighteen (18) years, for the purposes of making/producing) child pornography.

‘Possession of child pornography’, Section 70(1) of the " Crimes Act 1958 (6231/58) " :
A person who knowingly possesses child pornography is guilty of an offence. This applies to items that describe or depict a person who is or appears to be under sixteen (16) years of age engaged in sexual activity or in an indecent context or manner.
Penalty : Level 7 Imprisonment

‘Sale of unclassified, RC, or X films’, Section 15 of the " Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 ", Act No. 90/1995 :
It is an offence for any person to sell an unclassified film or a film classified RC or X in the state of Victoria. The definition of sell is contained in the Act and means to sell or exchange or let on hire and includes offer or display for sale or exchange or hire, agree to sell , exchange or hire and cause or permit to be sold or exchanged or hired, whether by retail or wholesale. In order to proceed with such a charge it is essential to obtain formal classification certificate for each
article.  Penalty : If film is subsequently Class. G, PG or M :
- 5 Penalty Units
If film is subsequently Class. MA or R :
- 10 Penalty Units
If film is classified or subsequently Class. X :
- 60 Penalty Units or 6 Mths imprisonment.

If film is classified or subsequently Class. RC :
- 240 Penalty Units or 2 Yrs imprisonment.
‘Making objectionable film’, Section 24 (1) of the " Classification (Publications, Films & Computer Games)(Enforcement) Act 1995 ", Act No. 90/1995 :
For the making or producing of an objectionable film to be an offence such making must be done for the purpose of gain. Section 24(2) states that a prosecution for this offence may be brought at any time; hence removing any statute of limitations. See definition section re the definition of Objectionable Film.
Penalty : 240 penalty units or 2 years imprisonment.

The following sections deal with offences relating to objectionable films/publications and child pornography in
the " Classification of Films and Publications Act 1990, (46/1990) ".
‘Make objectionable film for purpose of gain’, Section 44 (1) of the " Classification of Films & Publications Act 1990 (46/1990) " :
This offence only applies where the prosecution can prove the objectionable film was made for the "purpose of gain". If the film was made for personal use, this section cannot be used. If children are involved in the making of the film, consider the charge of "procure child" to make an objectionable film, which is discussed below.
Copying such a film is also an offence under s.44(2) C.F.P.A.
Penalty : 240 penalty units, or 2 years imprisonment.
Defences : Section 46 makes it a defence if:
a) the film was classified at the time of the offence or subsequently; or
b) the defendant had taken all reasonable steps to classify the film or
c) the defendant reasonably believed the film was classified.

‘Procure Child to Make Objectionable Film Section’, Section 45 of the " Classification of Films &
Publications Act 1990 (46/1990) " : 
This offence applies to situations when a person invites or procures, attempts to procure or aids or abets the procuring of a child to make an objectionable film. A child is a person under the age of eighteen (18) years.

Depending on the nature of activity on the video, the offence of "take part in act of sexual penetration" etc. should be considered. Penalty : 600 penalty units, or 5 years imprisonment, or both.

‘Possession of Child Pornography’, Section 60A of the " Classification of Films & Publications Act 1990
(46/1990) " :
This offence applies to films or photographs depicting a person under or apparently under the age of sixteen (16) years engaging in sexual activity, or who is depicted in an indecent sexual manner.
Defences : It is a defence to a charge under this section to prove that the:
1) item was classified; or
2) item was for medical/legal/scientific/educational purposes; or
3) item had artistic merit - this defence is unavailable if the child was actually under sixteen (16) years; or
4) defendant believed on reasonable grounds that the child was sixteen (16) years or over, or was the defendant's spouse; or
5) defendant was not more than 2 years older than the child was or appeared to be at the time of offence ; or
6) child depicted was the defendant.
Photocopies of photographs are included in this section, (s.60A(5)(b)).
Penalty : 120 penalty units, or 12 months imprisonment.

THE SUMMARY OFFENCES ACT 1935
‘Indecent or offensive material’, Section 33 of the " Summary Offences Act 1935 " :
"(2) A person who -
a) produces, or takes any step in the production of indecent or offensive material for the purpose of sale ; or
b) sells indecent or offensive material ; or
c) exhibits indecent or offensive material in a public place or so as to be visible from a public place ; or
d) deposits indecent or offensive material in a public place or, except with the permission of the occupier, in or on private premises ; or
e) exhibits indecent material to a person so as to offend or insult that person : or
f) delivers or exhibits indecent or offensive material to a minor (other than a minor of whom the person is a parent or guardian) ; or
g) being a parent or guardian of a minor, causes or permits the minor to deliver or exhibit indecent or offensive material to another person ; or
h) causes or permits a person to do an act referred to in a preceding paragraph of this subsection,
- is guilty of an offence.   Penalty :
a) if the offence involves child pornography for a first offence, division 5 imprisonment and for a second or subsequent offence, division 4 imprisonment ;
b) in any other case division 4 fine or division 7 imprisonment.
(3) A person who is in possession of child pornography is guilty of an offence.
Penalty :
Division 6 fine or imprisonment.
(4) In proceedings for an offence against this section, the circumstances of the production, sale,  exhibition, delivery or possession of material to which the charge relates and its use of intended use may be taken into account in determining whether the material was indecent or offensive material, but, if the material was inherently indecent or offensive material, the circumstances of its production, sale, exhibition, delivery or possession or its use or intended use cannot be taken to
have deprived it of that character.
(5) Notwithstanding the foregoing provisions of this section -
a) no offence is committed by reason of the production, sale, exhibition, delivery or possession of material in good faith and for the advancement or dissemination of legal, medical or scientific knowledge ; and
b) no offence is committed by reason of the production, sale, exhibition, delivery or possession of material that constitutes, or forms part of, a work of artistic merit if, having regard to the artistic nature and purposes of the work as a whole, there is
no undue emphasis on its indecent or offensive aspects.
(6)-(9) (...)
(10) This section does not derogate from the Classification of Publications Act 1974 or the Classification of Films for Public Exhibition Act 1971. "

NOTE FROM THE EDITOR:   Copyright holders:  We are not trying to assert any rights to your article.  We operate as a repository with a virtually unlimited storage capacity.  We capture and store articles to prevent loss due to system crashes and the space limitations that most sites operate under.  We will remove your article if you wish.  This is a non-profit site.  AgeOfConsent.com is a repository of both legal and commentary information on laws relating to sexual activity.  We do not, and can not offer any legal advice or provide any legal counsel.  Do not write to us requesting our advice or suggestions -- your email will be ignored.  This web site and its contents are in no way affiliated, funded, or regulated by any Local, State, Federal or International government agency or governing body.  Information contained on this site has been provided by readers and/or has been discovered through the research of volunteers.  Other than cursory review, no efforts have been made to independently verify the current status of the legal statutes contained in these page nor whether any cases used as examples are still precedent.   Do not rely on this information to make legal decisions.  You should contact a legal advisor in your area for a proper determination of law on any questions you might have.  Any emails and other user comments and opinions included on this site are the opinions of the creator of the message and are not necessarily those of this site, its editors, advertisers or other affiliated entities.