The Law Handbook 2024

153 3.3 Sexual offences NOTE The law in this chapter is current as at 1 December 2023. TRIGGER WARNING Please note that this chapter (and pages it links to) contains information about sexual assault and violence that may be triggering to victim/survivors. Legislation update There were significant changes to sexual offences as a result of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 (Vic) (‘ JL Act ’) which received royal assent on 6 September 2022 and implemented 13 recommendations made by the Victorian Law Reform Commission arising out of its 2021 report Improving the Justice System Response to Sexual Offences . What is a sexual offence? Sexual offences can happen to anyone. Often they are not reported to police because victim/survivors feel scared, ashamed and confused. Sexual assault is never the victim’s ‘fault’. Sexual offences include crimes listed in the Crimes Act 1958 (Vic) (‘ Crimes Act ’). Sexual offences include rape, sexual assault, threat to commit a sexual assault, incest, and sexual offences committed against children and people with a cognitive impairment or mental illness. When interpreting sexual offences in the Crimes Act, it is the intention of parliament that courts have regard to the facts that: • there is a high incidence of sexual violence within society; • sexual offences are significantly under‑reported; • a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment or mental illness; • sexual offenders are commonly known to their victims; and • often, there are no physical signs that an offence has occurred (see s 37B Crimes Act). Consent “Consent to an act is not to be assumed—that consent involves ongoing andmutual 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)” (s37A(ab) Crimes Act). This is called affirmative consent. Consent means free and voluntary agreement. A person does not consent just because they do not resist an act verbally or physically. A person does not consent to an act just because they consented to: (a) a different act with the same person; (b) the same act with the same person at a different time or place; (c) the same act with a different person; or (d) a different act with a different person. (s 36 Crimes Act). Whether or not someone reasonably believes that another is consenting to an act depends on the circumstances. Belief is not reasonable if within a reasonable time before or at the time the act takes place, they do not do or say anything to find out if there is consent. This does not apply if the person seeking consent has a cognitive impairment or mental illness (other than the effects of intoxication that is self- induced) and this impairment or illness is a substantial cause for them not saying or doing anything to find out if there’s consent (s 36A Crimes Act). Cognitive impairment is defined in section 52A of the Crimes Act and includes impairment because of intellectual disability, dementia, neurological disorder or brain injury. Mental illness has the Contributor: Suzan Gencay, Family Violence and Victims Legal Service Coordinator, South-East Monash Legal Service