It is a sexual offence to sexually penetrate or engage in any sexual activity with a person in the absence of consent or with a person or child under the age of consent.
If you have been charged with a sexual offence, contact our sex offence lawyers for advice and support.
This article focuses on the law relevant to consent and reasonable belief in consent as applied to sexual offences, including rape.
The meaning of consent
Consent is defined in the Crimes Act 1958 to mean “free agreement” (until 30 July 2023) or “free and voluntary agreement” (from 30 July 2023) and describes (non-exhaustively) the circumstances in which a person does not freely agree to an act.
Words, non-verbal conduct, a course of non-verbal conduct, or any combination thereof can constitute valid consent to sexual activity. Consent must be particular to the intended behaviour, and the activity’s nature and circumstances must be clearly understood. Importantly, consent to sexual behaviour given previously can be withdrawn at any time before or during sexual activity. Consent obtained by way of force, threats or intimidation does not constitute free agreement, and to show the absence of consent, the victim is not required to have resisted the act. On the contrary, consent must be clearly and mutually communicated.
The relevant provisions defining consent are found in section 34C from 1 July 2015 to 30 June 2017, section 36 from 1 July 2017 to 29 July 2023 and section 36AA from 30 July 2023. Importantly, these provisions apply to proceedings for sexual offences and do not apply to non-sexual offences where consent may be an issue, such as common assault and intentionally causing injury.
Non-consent and sexual offences
Non-consensual sexual activity is a criminal offence with severe penalties under the Victorian Crimes Act 1958. Sexual consent is generally valid if given freely, voluntarily and knowingly. A person may give valid consent during sexual activity or as prior consent within a reasonable time of the sexual act. A person may also withdraw consent to sexual activity at any time, before or during sexual activity.
If a person engages in non-consensual sex, they may be guilty of a sex offence under the Victorian Crimes Act 1958. For an accused person to be found guilty of a sex offence, such as rape or sexual assault, there are several elements that the prosecution must prove beyond a reasonable doubt.
The following two consent-related elements are common for several sex offences:
- The complainant did not consent to the sexual act (the physical element of the offence)
- The accused did not reasonably believe that the complainant consented to the sexual act (the fault element of the offence).
These two elements are common to the following offences:
Legal definition of consent
Consent from 30 July 2023
Section 36 of the Crimes Act 1958 (Vic) contains the definition of consent, which is changed from “free agreement” to “free and voluntary agreement” to sexual activity.
The objectives and guiding principles of consent law are to:
Promote the principle that 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).
The new definition of consent is qualified by a list of circumstances in which a person does not consent or is rendered incapable of consenting to sexual activity (see ss 36 and 36AA).
When a person does not consent
Sections 36 and 36AA extend the consent law framework by identifying where there is no consent to a sexual act. Section 36(2)-(3) states:
- A person does not consent to an act just because they do not resist the act verbally or physically.
- Just because a person has consented to previous sexual behaviour (whether the same or different) does not mean they consent to further sexual behaviour.
Non-consent circumstances
In the circumstances listed in s 36AA, there may be a form of consent to the physical act, but due to the operation of a subdivision, consent is vitiated. That is, there may be apparent consent but not valid consent. In other circumstances, such as if the victim is unconscious, there is no consent at all.
The provision also contemplates circumstances in which there will be vitiated consent due to mistake on the part of the consenting party. However, as the listed circumstances are expressly non-exhaustive, other circumstances not listed may be relevant to whether there was free and voluntary agreement.
Where the prosecution proves that one or more of the circumstances listed in section 36AA exist, the absence of consent is established. In those circumstances, it is not necessary for the jury to assess whether or not there was an absence of free and voluntary agreement (DPP v Yeong [45]).
Non-consent due to force, coercion, abuse or incapacity etc
Section 36AA(1) sets out a non-exhaustive list of additional circumstances in which a person does not consent to sexual activity, including that:
- The person does not say or do anything to indicate consent to the act
- The person submits to the act because of force, fear of force, or harm of any type
- The person submits to the act because of coercion or intimidation
- 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 intoxicated as to be incapable of consenting to the act
- The person is so intoxicated as to be incapable of withdrawing consent to the act.
Non-consent due to mistaken belief, stealthing or withdrawn consent etc
The following circumstances under section 36AA(1) may apply where a person gave consent when not so impaired (by alcohol or other drugs) to be rendered 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
- 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, a person involved intentionally does not use, removes, or tampers with the condom (known as ‘stealthing‘)
- Having given consent to the act, the person later withdraws consent to the act taking place or continuing.
Stealthing
‘Stealthing’ occurs when consent is given to sexual activity on the agreement that the other person uses a condom and that person intentionally removes, compromises, or does not use a condom.
An important part of consent law amendments commenced on 30 July 2023 criminalise stealthing by including it in the list of examples, specified in section s36AA(1), in which a person does not consent to sexual activity. The effect of this amendment makes it clear that a person who penetrates another while ‘stealthing’ is committing rape.
Reasonable belief in consent from 30 July 2023
The second consent-related element the prosecution must prove relates to the accused’s state of mind about a person’s consent. That is, the accused “did not hold a reasonable belief” that the complainant was consenting to secure a conviction for a sex offence.
Section 36A addresses the reasonableness of an accused’s belief, stating that their belief is unreasonable unless they actively do or say something to find out whether the complainant is consenting.
The ‘no reasonable belief in consent’ element will, therefore, be satisfied in circumstances such as if the accused:
- The accused knew that the complainant was not consenting.
- The accused did not turn their mind to whether the complainant was consenting.
- Even though the accused believed the complainant was consenting, this was not a reasonable belief in the circumstances.
If a Magistrate or jury finds that the accused held a reasonable belief that the complainant was consenting, such as if they said something to find out that the complainant consented, the accused must be found ‘not guilty’ in sex offence cases.
There are two parts to amendments to the reasonable belief in consent provision implemented on 30 July 2023 (s 36A).
- Previously, the question of whether the accused’s belief in consent was reasonable included consideration of the circumstances, including any steps taken by the accused to find out whether the complainant was consenting. However, the new s 36A specifically addresses whether the accused said or did anything to find to ascertain consent.
- The effect of the accused’s conduct is changed such that, following the reforms, a belief cannot be reasonable unless the accused said or did something to find out whether the other person consented (subject to exceptions in s 36A(3)).
Consent before 30 July 2023
Before recent amendments to consent law implemented on 30 July 2023, for sexual offences listed in subdivisions 8A to 8E, consent was defined as “free agreement” (Crimes Act 1958 s 36).
The old section 36(2) also provides a non-exhaustive list of circumstances in which a person does not consent to an act (s 36(2)).
S 36 Consent
Circumstances in which a person does not consent to an act include, but are not limited to, the following—
(a) the person submits to the act because of force or the fear of force, whether to that person or someone else;
(b) the person submits to the act because of the fear of harm of any type, whether to that person or someone else or an animal;
(c) the person submits to the act because the person is unlawfully detained;
(d) the person is asleep or unconscious;
(e) the person is so affected by alcohol or another drug as to be incapable of consenting to the act;
(f) the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act;
Note This circumstance may apply where a person gave consent when not so affected by alcohol or another drug as to be incapable of consenting.
(g) the person is incapable of understanding the sexual nature of the act;
(h) the person is mistaken about the sexual nature of the act;
(i) the person is mistaken about the identity of any other person involved in the act;
(j) the person mistakenly believes that the act is for medical or hygienic purposes;
(k) if the act involves an animal, the person mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes;
(l) the person does not say or do anything to indicate consent to the act;
(m) having given consent to the act, the person later withdraws consent to the act taking place or continuing.
Reasonable belief in consent before 30 July 2023
In assessing evidence of the accused’s state of mind for offences occurring before 30 July 2023, consideration is given to whether the accused took steps to determine whether the complainant was consenting or not. See the old section 36A below:
S 36A Reasonable belief in consent
(1) Whether or not a person reasonably believes that another person is consenting to an act depends on the circumstances.
(2) Without limiting subsection (1), the circumstances include any steps that the person has taken to find out whether the other person consents or, in the case of an offence against section 42(1), would consent to the act.
Such an assessment is based on the evidence of the particular case. However, if a belief is based on a general assumption, it is not reasonable. In determining whether a belief in consent is reasonable or unreasonable, the jury must look at what the community would reasonably expect of the accused in the circumstances.
Consent & the relevance of intoxication
Under the Crimes Act 1958, intoxication may be considered in respect of a sexual offence in the following ways:
- If an accused’s intoxication was self-induced, the standard of a reasonable person who was not intoxicated at the relevant time is applied to determine whether the accused’s belief in the complainant’s consent was reasonable (s36B).
- If the accused’s intoxication was involuntary or not self-induced, such as due to fraud, sudden emergency or mistaken belief, the standard of a reasonable person who was intoxicated, and who was in the same circumstances as the accused is applied (s36B).
- The complainant’s level of intoxication may render them incapable of consenting or withdrawing consent to a sexual act, such as if they are incapable of understanding the nature of the act (s36AA).
So long as a person above the age of consent can understand the nature of sexual activity and can actively communicate consent, they can generally consent if under the influence of drugs or alcohol. However, a person cannot give consent in a vulnerable position, such as if they are asleep, passed out, semi-conscious, mistaken or unable to understand the nature of the activity.
The defence of consent for sexual offences
Consent can be a defence, and the absence of consent can be an element of an offence to be proven. For an accused person to be guilty of certain sexual offences, the prosecution must prove beyond a reasonable doubt that there was an absence of consent.
A defence to sexual offences may be established if the complainant (or alleged victim) consented to the sexual act. Circumstances surrounding the issue of non-consent are addressed in sections 36A and 36AA of the Crimes Act 1958.
Reasonable belief in consent
A defence can be established if there is evidence that the accused held a reasonable belief that the complainant was consenting to the sexual act. For example, if the accused did or said something to determine whether the complainant consented within proximity to the sexual act, the accused is considered to have held a reasonable belief in consent and, therefore, has a valid defence.
Accused’s cognitive impairment or mental illness
An accused person with a cognitive impairment or mental illness (other than the effects of voluntary intoxication) that causes them not to say or do anything to determine whether the complainant consents may have a valid defence under section 36A(3). The presence of a cognitive impairment affecting an accused’s capacity to determine whether the complainant consents must be proved by the accused on the balance of probabilities per section 36A(4).
The accused did not consent to the sexual activity
A defence to a sex offence may be established under section 50H if the accused did not consent to engage in the sexual act. This situation may arise if the defendant engaged in the sexual act under threat and fear of harm or if it occurred while involuntarily intoxicated with drugs or alcohol (such as if their drink was spiked).
Consent in matters involving children
Consent may not be a defence in a sexual offence where the alleged victim is a child. The age of consent in Victoria is generally 16 years of age. However, this rule does not apply when a sexual act occurs between a 16 or 17 year old and a person in a position of authority or supervision over them, such as a school teacher or an employer (see Crimes Act 1958 s 49C).
Ages of consent in Victoria
- A child who is less than 12 years old cannot consent to any sexual activity (see Crimes Act 1958 s 49A).
- A child aged between 12 and 16 can consent to sexual activity with a person who is not more than two years older.
- A child aged under 16 years cannot consent to sexual activity unless the other person is not more than two years older than them. However, a defence can be established in cases where the accused believed the child was 16 years or older and the child was aged over 12 at the time of the offence (see Crimes Act 1958 s 49B).
See Age of Consent in Victoria for more.
Defence of consent for other offences
While the consent defence is most commonly raised in sexual offence cases, the defence can be raised to a range of criminal offences against the person, for example, theft (where it can be argued that they had consent from the owner to take/use the property), trespass (where it can be that they had permission to enter the building), criminal damage (consent to assume the rights of the owner) and in sport (where consent to contact may be implied by participating in contact sports).
A person who consents to the application of force has no right to complain about pain or injury suffered if it is within the bounds of what was consented to. In terms of assault, the term itself involves the notion of a lack of consent. ‘An assault with consent is not an assault at all’ (R v Schloss (1897)). This statement is subject to a qualification; the law does not allow people to consent to the infliction of actual or grievous bodily harm. However, this qualification has notable exceptions, such as sporting events, surgical procedures, and lawful discipline. The concept that consent vitiates an assault can extend to any criminal charge that relies on the absence of a lawful excuse.
In Pallante v Stadiums Pty Ltd, regarding a boxing tournament, it was held that a person cannot generally consent to the infliction of actual bodily harm but that in some sporting events, there is implied consent that injury may occur. The law recognises that in lawful sporting events that are not inherently dangerous to life or limb, infliction of actual bodily harm is to be expected under the rules. This is satisfactory, provided a participant does not intend to inflict very serious injury. However, sports like MMA or mixed martial arts may challenge this proposition.
Therefore, a person can lawfully consent to the infliction of actual bodily harm that is an expected and normal consequence of an activity, such as tattooing, male circumcision, body piercing, and branding, see R v Wilson [1996]. The presence of drugs and alcohol during the activities in question makes them inherently dangerous to life or limb, negating consent.
What does sexual consent look like?
Consent must be freely communicated, mutual and ongoing between participants. Consent must also be given voluntarily without fear, intimidation, coercion or mistaken belief about the nature of the activity. Verbal or nonverbal cues may indicate consent, but both parties must actively communicate consent with a mutual understanding of the sexual behaviour intended. Even if a person has previously consented, a person may withdraw consent at any time before or during a sexual act.
Equal consent and enthusiastic consent plays a critical role in all sexual activity between people in many different relationships. Consent can never be assumed and non-consensual sexual activity can occur in many different situations, including:
- within a sexual relationship
- within a marriage
- with people who provide commercial sexual services
- with a person who is incapacitated; or
- with a person in a position of power or authority.
People may react differently to a non-consensual sexual act. There is no standard or proper response to non-consensual sexual behaviour. Some people may protest or resist physically; others may freeze, be silent, or not do or say anything when experiencing a non-consensual act or sexual violence.
Even if a person has previously consented, they may withdraw consent at any time before or during a sexual act. Consent, therefore, requires ongoing and mutual communication.
Consent experts
When if comes to understanding how consent relates to a defence under the criminal law, Dribbin & Brown Criminal Defence Lawyers are experts in the field.
