Sexual offences

Most sexual offences depend on whether or not there was consent.

The new definition of consent in section 36 of the Crimes Act 1958 (Vic) (‘Crimes Act’) reflects the affirmative consent model, which requires a person to take steps to find out if there is consent. Consent means free and voluntary agreement. A person does not consent to an act just because they do not resist the act verbally or physically. A person does not consent because they consented to a different sexual act with the same person, or the same person at a different time or place, the same act with a different person, or a different act with a different person.

Sometimes consent is irrelevant; for example, it is not a defence is someone consented to female genital mutilation or incest.

Whether or not a person believes that another person is consenting depends on the circumstances. Belief in consent is not reasonable if, within a reasonable time before or at the time the sexual act takes place, a person does not say or do anything to find out if another person is consenting to the act. If a person has a cognitive impairment or mental illness that is a substantial cause of them failing to say or do anything to find out if a person consents, they must provide proof on the balance of probabilities (s 36A Crimes Act).

Whether a person’s intoxication changes what is reasonable in the circumstances depends on whether the intoxication was self-induced or not. Intoxication can be from drugs or alcohol. If the intoxication was self-induced then, when determining whether consent was a reasonable consideration, evidence needs to be given as to what the standards of a reasonable person who was not intoxicated in the same situation at the time would have been (see s 36B Crimes Act).

The circumstances in which a person does not consent are set out in section 36AA of the Crimes Act and include (but are not limited to):

• the person does not say or do anything to indicate consent to the act;
• the person submits to the act because of force, a fear of force, harm of any type, or a fear of harm of any type, whether to that person or to someone else or to an animal, regardless of:
• when the force, harm, or conduct giving rise to the fear occurs, and
• whether it is, or is a result of, a single incident or is part of an ongoing pattern;
• the person submits to the act because of coercion or intimidation:
• regardless of when the coercion or intimidation occurs, and
• whether it is, or is a result of, a single incident or is part of an ongoing pattern;
• the person submits to the act because the person is unlawfully detained;
• the person submits to the act because the person is overborne by the abuse of a relationship of authority or trust;
• the person is asleep or unconscious;
• the person is so affected by alcohol or another drug as to be incapable of consenting to the act;
• the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act (this circumstance may apply where a person gave consent when not so affected by alcohol or another drug as to be incapable of consenting);
• the person is incapable of understanding the sexual nature of the act;
• the person is mistaken about the sexual nature of the act;
• the person is mistaken about the identity of any other person involved in the act;
• the person mistakenly believes that the act is for medical or hygienic purposes;
• the act occurs in the provision of commercial sexual services and the person engages in the act because of a false or misleading representation that the person will be paid (a false or misleading representation may be made by words or conduct (including by omission) and may be explicit or implicit);
• if the act involves an animal, the person mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes;
• the person engages in the act on the basis that a condom is used and either:
• before or during the act, any other person involved in the act intentionally removes the condom or tampers with the condom, or
• the person who was to use the condom intentionally does not use it;
• having given consent to the act, the person later withdraws consent to the act taking place or continuing.

Examples of types of harm for the purposes of consent include:

• economic or financial harm;
• reputational harm;
• harm to the person’s family, cultural or community relationships;
• harm to the person’s employment;
• family violence involving psychological abuse or harm to mental health;
• sexual harassment.