Understanding consent laws in Victoria is important for anyone involved in a sexual relationship. No matter your personal circumstances, whether a young adult, a parent, or someone facing a legal issue, you should know the legal definition of consent in Victoria, how it's applied, and what has changed in recent years.
This blog covers the key aspects of consent under Victorian law, including recent reform, real examples, and answers to commonly asked questions about sex offences and consent.
The Legal Definition of Consent in Victoria: Recent Reforms
Section 36 of the Crimes Act 1958 (Vic) defines consent and is the foundation of how courts assess whether a sexual act was consensual, and lawful. Following recent amendments, consent in Victoria is now defined as "free and voluntary agreement".
Importantly, Victorian law now says that consent cannot exist if a person does not say or do anything to indicate consent. This new definition of consent adopts an affirmative consent model, requiring people engaging in sexual activity to take steps to find out whether the other person consents. It cannot be assumed from silence, lack of resistance, or past sexual history or habits.
Consent must be freely given, ongoing throughout the activity, and given by someone who is capable of consenting.
Consent can be withdrawn at any time, including during the course of sexual activity. Consent may also be given for some sexual activities, and not others.
There have also been recent updates to the directions that are given to juries in sexual offence trials, aimed at reflecting more modern ideas about sexual behaviour and the responses of people who have been sexually assaulted.
Situations Where Consent Cannot Be Given
The Crimes Act spells out a number of situations as examples of where consent cannot be established. These include circumstances where a person:
- Submits to the act due to force, or fear of harm
- Is asleep or unconscious
- Is so intoxicated that they are incapable of either consenting, or withdrawing consent
- Is mistaken about the nature of the sexual act, or the identity of the other person involved
- Engages in the act due to a false or misleading representation that they will be paid for it
The Age of Consent in Victoria
The legal age of consent in Victoria is 16. Engaging in sexual activity with a child under 16 is a criminal offence; consent is not a defence. Specific charges exist to criminalise this behaviour, such as sexual penetration of a child. These offences carry significant penalties and commonly result in imprisonment.
There are exceptions to the age of consent. For example, if a child aged 16 or 17 is under a person's care, supervision or authority-such as, if the person is the child's teacher, coach or employer-it is a criminal offence to engage in sexual activity with the child.
FAQs: Consent and Sexual Offences in Victoria
Is consent given when a person is intoxicated valid?
If a person is so affected by alcohol or drugs that they can't understand the nature of the act or cannot communicate clearly, they are not capable of giving consent. Similarly, if someone is too intoxicated to withdraw consent, then consent cannot be established. This can be a central issue in many sex offence cases.
What is affirmative consent?
Affirmative consent means taking proactive steps to confirm whether the other person wants to engage in sexual activity. This can involve verbal communication or other clear, unambiguous signals.
Can a person change their mind about consenting?
Yes. A person can withdraw consent at any point. Continuing sexual activity after consent is withdrawn can lead to criminal charges, including rape or sexual assault.
Does prior sexual activity mean ongoing consent?
No. Prior sexual history does not imply consent to future acts. Each encounter must involve a new, explicit agreement.
What happens if someone is falsely accused?
False allegations do happen. If you are under investigation or have been charged, it is critical to seek legal advice immediately from a criminal defence lawyer in Victoria.
Need Legal Advice on Consent or Sex Offence Charges?
Consent is a complex and sensitive legal issue. Whether you're seeking clarity or defending against a sex offence allegation, the best step you can take is to speak with an experienced criminal lawyer.
At Doogue + George, our Melbourne-based legal team specialises in defending clients accused of sexual offences. We offer confidential, compassionate, and expert advice tailored to your situation.
Call us today at (03) 9670 5111 or contact us online at https://www.criminal-lawyers.com.au/contact to speak with a criminal defence lawyer in Victoria.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
