Sex & the law: A conversation with Katia – Community and Partnership Lead at Moonee Valley Legal Service
"Sex should be a positive, fun, and a pleasurable experience. I think it’s exciting that young people have so much access to different information. The law can sometimes be scary, but the best way to approach sex and the law is with curiosity.
"The main thing is that if you’re in doubt and you have questions about the law, come and have a chat with us and we can work it out together."
Tell me a little bit about yourself and your role.
I’m Katia, the Community and Partnership Lead at Moonee Valley Legal Service. I oversee community development, legal education and project work, and occasionally do some lawyering.
Our office is physically located on a public housing estate and we cover a large catchment area, so we work with a really diverse group of people. An exciting program we’ve recently started is the Legal Concierge program, which hires young people with lived experience of public housing to lead community engagement and legal education for social housing residents.
What is the legal age to have sex?
You cannot legally consent to sex if you are under the age of 12. Between the ages of 12 and 15, you can legally consent to sex but that person must be within two years (24 months exactly) of your age. So you could be 13 and they could be 15. Once you are 16 you can consent to sex, but you cannot consent to sex with anyone who is in a position of power, so that could be your teacher, coach, or music tutor etc. This means that the law considers the effect of power structures within a sexual relationship. Then after the age of 18 you can consent to sex with anyone.
Does this law apply to things like oral sex and fingering?
Things like oral sex and fingering are counted as sexual activity. Under the law, sex is considered as not only things that are penetrative, but also things that are sexual in nature, which includes oral sex and touching.
What are the laws around sending sexual pictures?
The law around sexting (sending sexual images or content) can be really confusing and young people are often told ‘don’t do it!’
The law states any sexual image of someone under 18 is child pornography, but if you are under 18 and have sent or received a sext you may not get in to trouble. This is a simple way to understand the law and how it applies to you.
‘Send’ – can I send a consensual sext of myself to someone? Yes, if you are both under 18 and no more than two years younger than each other.
‘Keep’ – can I keep a consensual sext of someone that they sent me? Yes, if you are both under 18 and no more than two years younger than each other.
‘Share’ – can I share an image of someone with others? No! If the person in the image is under 18 it is considered distributing child pornography, if the person is over 18 it is considered image-based abuse. If you are found guilty you may get a criminal record, go to prison or be registered as a sex offender. (It’s also not a very nice thing to do).
Remember, if there is a criminal act being committed in the image, it is completely illegal, meaning none of the above exceptions apply.
What are the new affirmative consent laws?
The Victorian government recently introduced laws that make everyone responsible for seeking sexual consent. If two people are having sex, each have positive obligation to show they did not just assume it was consensual. Each must show they actually asked the other person, and the person said yes, or nodded, or smiled in a positive way.
It needs to be more than just ‘we were both there and they allowed me to take their clothes off.’ There must be clear verbal or physical communication, signaling the other person wanted to have sex.
What is stealthing?
Stealthing is the practice of someone removing a condom during sex without consent, when their partner has only consented to condom-protected sex. This is a law that was introduced at the same time as affirmative consent laws. If a person has consented to sex with contraception, particularly a condom, then during the sexual act one person removes or tampers with the condom without the other person knowing, then it is no longer considered consensual sex.
If we’re both drunk but consenting, is that still breaking the law?
There’s lots of times alcohol might be involved or connected to sex, which can be messy. If you’ve had a couple of drinks you can often still consent.
The law says that if somebody is really drunk they are usually not able to consent. This comes back to the affirmative consent laws and the importance of talking and communicating with the person you are having sex with, checking in on how they are feeling and making sure they are safe.
It can be a tricky question because there is a grey area, but if a person is too drunk to ‘freely’ and ‘enthusiastically’ consent or to ‘reverse’ their decision then sex may be breaking the law.
It should go without saying that if people are really drunk and non-responsive then they cannot consent and that’s always a no!
What if I change my mind during sex?
You can change your mind during sex, and the other person should respect the decision that you have made and respect your feelings and emotions.
If you change your mind during sex and express that, but the person continues to have sex with you or forces you to have sex then that is breaking the law.
It is important to remember that consenting to one sexual act does not mean you are consenting to all sexual acts.
What will happen if I break these laws?
Under the law there are different types of sexual offences that range from touching and sexual exposure to rape, incest and sexual assault. The penalties differ depending on the offence and the circumstances of the person that has committed the offence.
The Judge may decide that the person needs to do a course, such as a healthy relationship course or Men’s Behaviour Change Program. They may have to pay a fine or meet certain conditions, like attend a parole office regularly or got to counselling.
For really serious matters a person may be sentenced to prison and be placed on the sex offender’s register. The register is a list of people that have committed sexual offences. Depending on the offence, a person may be on the list for up to 15 years. The register is tightly controlled and requires people report to police their whereabouts and prevents them from doing any activities that involve vulnerable groups of people, like children.
How can knowing the laws help me?
I think that we should approach sex with curiosity and joy. It should be pleasurable, it should be fun, it should be communicative.
I think that sometimes the law can be a bit scary when we talk about sex, but knowing the law can help you feel empowered and help your decision-making process. It may also prompt you to ask questions about what a healthy relationship is, not just in terms of what is legal, but thinking about affirmative consent laws, what does good communication look like.
Communication makes for really healthy, pleasurable sex. Checking in with the person that you’re with, and making sure that they feel safe and cared for is really important. While the law can be really black and white, what it tries to do is capture that fun, healthy element of sex that is good communication.
Do you think porn negatively affects our understanding of consent?
Lots of people look at porn online. I think that what we see represented isn’t necessarily what would be healthy and enjoyable. It is important to have some critical engagement or critical awareness when you are watching porn.
Porn does not always show the messiness and the fun in sex, or the jokes and the giggles. It also does not show the conversations that happen. It’s important to remember that porn is not necessarily a true representation of how sex works.
I think it is important to do a bit of research, there are lots of great Instagram accounts and blogs from sexologists that talk about healthy relationships, respect, enjoyable sex and pleasure. There is also sexual content out there that you can look at that gives some really positive representations of consent, pleasure and sex.
Who can I talk to for support/where can I go for more information or if I’m unsure?
If you want more legal information, you can always go to a Community Legal Centre. The one I work at is Moonee Valley legal Service, and we book free advice sessions, especially for young people that might have questions about sex and law. We are a non-judgmental service. You can come and talk to us if you think that maybe you have broken the law, or if you feel that somebody has harmed you. If you are a victim survivor we will do our best to provide you with advice and support.
We also have a great social work team here, so if there’s information you need, particularly around social or emotional support, we can refer you.
If you feel comfortable, another great place to start is with your school nurse or school counsellor. If you want to go outside of that, I know the Take Up Space website has some great resources and there is also Youth Law, Victoria Legal Aid for extra legal information, and GenWest.
Is there anything else that you think is important?
We see all this media about gendered violence suggesting that things are quite dire, but I feel hopeful because as a young person I didn’t get the kinds of programs that are available to young people today. When I go into schools to talk about sex and the law, I see a lot of young people talking about respect and consent in ways that I didn’t even know about. I went to a Catholic school so there was no sex ed. I feel hopeful that the amount of information that’s available to young people will make a real generational change, but I think it will be slow process.
Sex should be a positive, fun, and a pleasurable experience. I think it’s exciting that young people have so much access to different information. The law can sometimes be scary, but the best way to approach sex and the law is with curiosity.
The main thing is that if you’re in doubt and you have questions about the law, come and have a chat with us and we can work it out together.
