Victoria’s affirmative consent laws are now a central part of how sexual offence allegations are assessed under Victorian law. The current model was introduced through the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022, with the changes taking effect on 30 July 2023.
These reforms amended the Crimes Act 1958 (Vic) and introduced an affirmative consent framework, which requires people engaging in sexual activity to actively ensure that clear and voluntary consent has been obtained.
The reforms represent a significant shift in how consent is considered in Victoria. Instead of focusing primarily on the actions of the complainant, the law now places greater emphasis on whether the accused took reasonable steps to confirm consent.
For anyone facing an allegation or investigation relating to a sexual offence, understanding these laws is critical.
What is Affirmative Consent in Victoria?
Under section 36 of the Crimes Act 1958 (Vic), consent is defined as “free and voluntary agreement” to a sexual act.
For consent to exist under Victorian law, it must be:
- Freely given
- Voluntary
- Present at the time of the activity
Importantly, the law makes it clear that:
- A person does not consent simply because they do not physically resist
- Silence or lack of objection does not equal consent
- Consent to one sexual act does not automatically imply consent to another
The Victorian Law Reform Commission (VLRC) describes the affirmative consent model as one that requires active communication of consent, rather than assuming consent from silence or passivity.
Consent is also considered an ongoing process, meaning a person can:
- Consent to one act but not another
- Withdraw consent at any time
- Change their mind during an encounter
The Key Reform: Taking Steps to Check Consent
One of the most important changes introduced by the reforms appears in section 36A of the Crimes Act 1958 (Vic).
The law states that a belief in consent is not reasonable if a person did not say or do anything to check whether the other person consented within a reasonable time before or during the sexual act.
In practical terms, this means that:
- A person cannot rely on a claimed belief in consent if they made no attempt to confirm it.
- The law requires some form of communication capable of establishing agreement.
However, the legislation does not require a specific script or wording.
“Saying or doing something” to check consent may include:
- Asking a direct verbal question and receiving a clear response
- Conduct that clearly communicates mutual agreement
- Reciprocal behaviour that demonstrates active participation
What matters is whether the communication genuinely establishes free and voluntary agreement.
Circumstances Where Consent Does Not Exist
The reforms also introduced section 36AA of the Crimes Act 1958 (Vic), which sets out circumstances where consent is considered invalid.
Consent is not present where a person participates in sexual activity due to:
- Force or fear of harm
- Coercion or intimidation
- Unlawful detention
- Abuse of authority or trust
- Being asleep or unconscious
- Being so affected by alcohol or drugs that they cannot consent
- Being unable to understand the sexual nature of the act
Consent may also be invalid where a person participates because of a mistaken belief, including:
- Misunderstanding the sexual nature of the activity
- Believing the act has a medical or non-sexual purpose
- Misrepresentation about the identity of a participant
The law also recognises that consent can be withdrawn at any time, even if it was initially given.
“Stealthing” and Condom Removal
One of the reforms that has attracted significant public attention concerns the practice commonly known as “stealthing.”
Stealthing refers to situations where:
- A person agrees to sexual activity only on the condition that a condom is used, and
- The other person intentionally removes, tampers with, or does not use the condom.
Under Victorian law, this conduct may negate consent.
This reform reflects the position previously recognised by the Victorian Court of Appeal in DPP v Yeong and confirms that deception about condom use can invalidate consent.
Intimate Image Laws in Victoria
The Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 also introduced reforms addressing the non-consensual sharing of intimate images.
These provisions recognise the growing role of digital communication and aim to protect individuals from image-based abuse.
What Is an Intimate Image?
The legislation defines an intimate image as material that depicts:
- Sexual activity, or
- A person’s genital or anal region, or
- A person’s breasts in circumstances where privacy is expected.
Consent and Image Distribution
Consent must be freely and voluntarily given for the production or distribution of intimate images.
Importantly:
- Consent to create an image does not automatically mean consent to distribute it
- Consent to one format (such as a photograph) does not extend to other formats (such as video)
Offences and Penalties
Victorian law now establishes offences relating to:
- Producing intimate images without consent
- Distributing intimate images without consent
- Threatening to distribute intimate images
These offences carry penalties of up to three years’ imprisonment, depending on the circumstances.
Protection for Minors
Where the alleged offender is under the age of 16, prosecution generally requires the consent of the Director of Public Prosecutions.
The court may also make intimate image disposal orders, allowing authorities to seize and destroy material to prevent further harm.
Why These Reforms Were Introduced
The Victorian Government introduced these reforms following extensive consultation with survivors, legal professionals, and community organisations.
The aim was to:
- Strengthen protections for victims of sexual violence
- Clarify how consent operates under the law
- Promote community understanding of respectful relationships
- Address emerging forms of harm such as image-based abuse
These legal changes have also been supported by public education initiatives and community programs funded through the Victorian Budget.
Legal Advice for Sexual Offence Matters
Sexual offence allegations are complex and carry serious legal consequences.
If you are under investigation or facing allegations relating to affirmative consent laws in Victoria, obtaining experienced legal advice as early as possible is critical.
At Galbally Parker Lawyers, our experienced criminal defence lawyers regularly represent clients in serious and complex criminal matters, including sexual offence cases.
We can provide clear advice, protect your rights during police investigations, and ensure that your matter is handled with the care and expertise it requires.
Speak to an Experienced Criminal Defence Lawyer
If you require advice about sexual offence allegations, consent laws, or criminal investigations, contact Galbally Parker Lawyers for confidential legal assistance.
Our team has extensive experience navigating complex criminal matters and advocating for our clients throughout every stage of the legal process.