The law surrounding sexual offences, particularly issues of consent in prosecutions for alleged sex crimes, is complex and constantly evolving. Consent is a fraught and complex issue for law makers, because of our increased understanding of sexual assault and because of community standards, which reflect our better understanding of the prevalence and seriousness of sex crimes. Enshrined in legislation is the intention for Parliament to better recognise the high incidence of sexual violence within the Victorian community and to appreciate that these crimes are significantly under-reported. They also disproportionately affect women, children and vulnerable people, where the alleged perpetrators are more often than not someone known to them. 

The Complexity of Consent in Legal Matters

In the vast majority of cases, where it is conceded that a sexual act did occur between the accused and the complainant (the alleged victim), consent is the central issue in the case. More often than not, the accused will argue that the complainant consented to the sexual activity, where the complainant denies that they consented. Adding to the complexity of this scenario is the fact that, in the vast majority of cases, the only witnesses to the alleged offence are the accused the complainant. Sexual activity, by its inherent nature, almost always occurs in private. Accordingly, a jury is often left to decide whether they believe the complainant’s account beyond all reasonable doubt, in circumstances where the accused is arguing that the complainant consented or that the accused reasonably believed that they were consenting at the time of the sexual activity. 

The Introduction of Affirmative Consent

In the last two years, there has been the introduction of ‘affirmative consent’ models, which require a person to seek the ‘affirmative’ consent of another person by asking them whether they want to engage in sex acts. This arises predominantly due to a community interest in protecting intoxicated, drug affected and vulnerable people from falling victim to sex acts in circumstances where, any consent they did give, was vitiated by the fact that they were vulnerable and thus incapable of consent.

This article seeks to outline how consent is dealt with in relation to sexual offences, what the law currently is and what issues are frequently raised in criminal proceedings. Our office has decades of experience appearing in sexual offence proceedings and has seen the law evolve throughout time. 

How Sexual Offence Law has Evolved 

Whereas, previously, the prosecution bore the sole onus in all criminal prosecutions for sexual offences, that is no longer the case. 

In today’s world, consent in criminal matters means free and voluntary agreement. It is something that has to be communicated in relation to the act, place and person. It is not enough that the person has previously consented to the act or has performed the same act with a different person or in a different place. In addition, a person does not consent because they do not resist the act verbally or physically. Consent requires a more active participation by both parties now than it did previously. 

In everyday life, however, consent is more complicated. Sexual relationships are nuanced and often informed by the prior history of the individuals. A person may believe that another person is consenting. However, in retrospect that belief may not have been held reasonably given the factual matrix within which the sex occurred. 

For example, Person A may believe that Person B is consenting to sex because each time Person B is touched, they make a particular noise that Person A interprets as consent. However, Person B has had a lot to drink and, notwithstanding that Person B has previously made such noises during consensual sexual contact with Person A, they cannot reasonably be considered to be vocalising consent because they are intoxicated and half-conscious. Person A may also have had a lot to drink and genuinely believes that Person B is consenting, based on past experience, but (later, and in hindsight) realises that this belief was unreasonable. 

The Law Around Consent

The law states that a belief in consent must be reasonable. Whether or not a belief is reasonably held depends on the circumstances of the case. There is however an important exception to an assessment of the circumstances of the case, which applies where the accused person is intoxicated. 

Consent & Intoxication

Section 36B of the Crimes Act states that where a person is intoxicated and accused of an offence (usually a sexual offence), if the intoxication is self-induced (ie, they became intoxicated voluntarily) the standard that must be applied to the reasonableness of their belief must be the standard of a reasonable person who was not intoxicated. In simple terms, the belief of an intoxicated person can only be reasonable if a reasonable sober person would also have had that belief. 

Importantly, in 2022, reforms were made to the Crimes Act 1958, which states that a belief in consent to an act is not reasonable if the person seeking the consent does not say or do anything to find out whether the other person consents. The person seeking the consent must also do this within a reasonable period of time before or at the time the act takes place. The person cannot rely upon the fact that the complainant agreed on the Monday, for example, to have sex on the weekend as being consent given within a reasonable period of time.  

Essentially, the law expects that, before sex occurs, the parties seek verbal confirmation that they consent. There are some exceptions for individuals with cognitive impairment or mental illness, where other more precise provisions apply. However, for the vast majority of acts, some verbal or physical consent must be communicated freely and clearly in order for the belief in consent to be reasonable. The recent amendments to the Crimes Act make clear that the law presumes a person not to be consenting if they do not say or do anything to indicate consent. 

Consent & Power Imbalance

There are also circumstances where the law has recently recognised that a person is not consenting, by virtue of the nature of the relationship or the power imbalance in the relationship, where the complainant is under 18 years old. For example, in circumstances where a person is in fear of harm, any submission to an act is deemed not to be consensual. The introduction of section 36AA of the Crimes Act 1958 demonstrates a more developed understanding of family violence and coercive control and recognises that relationships may exist where consent is neither sought nor relevant. In circumstances where a person is concerned about economic or financial harm, for example, they are not considered to be consenting to sexual contact even if they participate and do not appear to be fearful. The dynamics of that particular relationship will be important in understanding and assessing consent.  

Consent & Commercial Sexual Relationships

The law also recognises and addresses consent in commercial sexual relationships, where a person has engaged a sex worker. If a sex worker has engaged in the sex acts willingly and actively, on the basis that they will be paid, and the client then does not pay them, consent is vitiated, meaning it did not occur. The reason consent is vitiated is because it was acquired through the false and misleading representation that the other party would be paid for the sexual contact. An extension of this principle, now enshrined in the legislation, occurs in circumstances of ‘stealthing’. ‘Stealthing’ is a phrase applied to the removal of a condom during a sex act that commenced consensually. Unless the other party consented to the removal of the condom, the sex act ceases to be consensual once the condom is removed. This is of particular concern to sex workers who have to comply with stringent health regulations and controls in order to work in licensed premises. The removal of a condom and exposure to disease can significantly affect their ability to work in the sex industry, at least in the short term, and can harm them financially, emotionally and physically. 

Consent & Authority

Lastly, consent can be vitiated where a person engages in consensual sexual activity, when they are between the ages of 16 and 18 years old, but the person with whom they engage with has a role of care, supervision or authority. Children between the ages of 16 years and 18 years old can consent to sexual activity with individuals over 18 years. However, the important exception to whether that consent is valid is where the adult with whom they are having sex is someone in a position of power (care, supervision or authority). Common and significant examples are teachers, employers, counsellors, police officers or youth workers. Even if the accused is young (for example 20 years old) and the complainant is technically able to consent (because they are, for example, 17 years old), if the accused is their music teacher or youth worker, that consent is vitiated by virtue of the power dynamic. These provisions are encapsulated in the Crimes Act and recognise situations where the complainant freely consented to sex, but in circumstances where they were encouraged or groomed by an adult who had a particular position of power over them. 

In recent times, we have appeared in many matters where older people, now adults in their 30’s or 40’s, are reflecting back on inappropriate sexual relationships that they had with older people and reporting these relationships to Police, because they allege that they were groomed and sexualised by an adult who had the care, supervision or authority over them. In many cases, the Police will investigate individuals accused of such offending, who have held roles with frequent access to children or young people. In most cases, the Police may arrange for the complainant to engage in a pre-text conversation with the accused, who receives a call out of the blue from the complainant who attempts to elicit admissions from the accused (who doesn’t know that they are being recorded). Usually, the calls start by the complainant telling the accused that they need to get something off their chest, which they have been thinking a lot about. They then make the allegation in the hope that the accused will respond and make admissions. If this is a situation that has happened to you, you should receive legal advice as a matter of urgency. 

Contact Galbally Parker for More Advice on Victoria’s Sex Offence Laws

Whilst we try to provide as much information as possible in our articles, each case is different and depends on its own circumstances. In addition, the law may be different for historical matter, including offences alleged to have been committed before the more recent legislative changes. In order for you to receive the best possible advice, it is imperative that you speak with an experienced sex offence lawyer. Our team is here to help you. We offer fixed fee and obligation free initial client consultations, so that you can get preliminary advice without committing to an ongoing engagement. Please contact our office for more information.