Sexual consent and the law - 13 ways consent cannot be given
What is consent?
Sexual consent is an ongoing and freely given agreement between two or more people who are engaging in sexual activity together. Legally, consent means free agreement. This is set out in section 36 of the Crimes Act 1958 (Vic). Sexual acts between two adults need both adults to be consenting to the sexual act. There are a number of situations where consent cannot be legally given.
Consent is not assumed
There are a number of situations where the law says that for a particular situation, a person is not consenting to a sexual act, or the continuation of a sexual act. Those circumstances are outlined in the Crimes Act as follows:
- A person submits to the act because of force or fear of force.
- A person submits to the act because of fear of harm of any type by anyone or an animal.
- A person submits to the act because they were being unlawfully detained.
- A person is asleep or unconscious.
- A person is so affected by alcohol or another drug as to be incapable of consenting to the act.
- A person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act. This could be in a situation where a person had initially consented to the act.
- A person is incapable of understanding the sexual nature of the act.
- A person was mistaken about the sexual nature of the act.
- A person mistakenly believes that the act is for medical or hygienic purposes.
- Where the act involves an animal, a person mistakenly believes that the act is for veterinary or agricultural purposes, or scientific research purposes.
- A person does not say or do anything to indicate consent to the act.
- Having given consent, a person later withdraws consent to the act taking place or continuing.
s.36(1) & s.36(2) (a) to (m) Crimes Act 1958 ( Vic)
Affirmative consent laws in Victoria
Legislation was passed in 2022 by the Victorian Parliament, which adopted an affirmative consent model. This model, explained in depth here, places emphatic onus on a person to receive consent before engaging in sexual activity. That is, to take steps by saying or doing things to find out if the other person consents.
I have been charged with a criminal offence that involves a sexual act. What do I do?
If you have been charged with a criminal offence that involves a sexual act against another person, or any type of sexual offence, we advise that our experienced criminal lawyers can assist you in providing advice and representation for your court case.
Please contact our expert lawyers