Sexual offences

“Consent to an act is not to be assumed—that consent involves ongoing and mutual 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 same meaning as in section 4 the Mental Health and Wellbeing Act 2022 (Vic) (‘MHW Act’); mental illness means a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.

Section 36B of the Crimes Act sets out the effect of intoxication on determining whether there was a reasonable belief in consent. If the intoxication is voluntary then the reasonable belief is assessed from the perspective of a reasonable person who was not intoxicated. If the intoxication is not voluntary then the reasonable belief is assessed from the perspective of a reasonable person who is intoxicated to the same extent. Intoxication will not be voluntary if it came about because of fraud, sudden extraordinary emergency, accident, reasonable mistake, duress or force or as a result of the use of a prescription drug used according to the directions by the person it was prescribed to.

Section 36AA sets out the circumstances in which a person does not consent (including but not limited to):

(a) the person does not say or do anything to indicate consent to the act;

(b) 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 someone else or to an animal, regardless of

(i) when the force, harm or conduct giving rise to the fear occurs; and

(ii) whether it is, or is a result of, a single incident or is part of an ongoing pattern; Examples – Each of the following is a type of harm that can be done to a person as described in this paragraph—

(b) reputational harm;

(c) harm to the person’s family, cultural or community relationships;

(d) harm to the person’s employment;

(e) family violence involving psychological abuse or harm to mental health;

(f) sexual harassment.

(c) the person submits to the act because of coercion or intimidation—

(i) regardless of when the coercion or intimidation occurs; and

(ii) whether it is, or is a result of, a single incident or is part of an ongoing pattern;

(d) the person submits to the act because the person is unlawfully detained;

(e) the person submits to the act because the person is overborne by the abuse of a relationship of authority or trust;

(f) the person is asleep or unconscious;

(g) the person is so affected by alcohol or another drug as to be incapable of consenting to the act;

(h) the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act;

(i) the person is incapable of understanding the sexual nature of the act;

(j) the person is mistaken about the sexual nature of the act;

(k) the person is mistaken about the identity of any other person involved in the act;

(l) the person mistakenly believes that the act is for medical or hygienic purposes;

(m) 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;

(n) if the act involves an animal, the person mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes;

(o) the person engages in the act on the basis that a condom is used and either—

(i) before or during the act, any other person involved in the act intentionally removes the condom or tampers with the condom; or

(ii) the person who was to use the condom intentionally does not use it;

(p) having given consent to the act, the person later withdraws consent to the act taking place or continuing.

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