Consent is at the heart of most adult sexual offence cases in Victoria, and the law was fundamentally rewritten with effect from 30 July 2023. Understanding the current affirmative consent model is essential for anyone facing an allegation. McMahon Criminal Defence Lawyers defends sexual offence matters across Victoria on fixed fees. See also our main sexual offences page.
What is Affirmative Consent?
For conduct on or after 30 July 2023, Victoria applies an affirmative consent model under the Crimes Act 1958. Consent means free and voluntary agreement. The Act sets out an expanded list of circumstances in which a person does not consent — including where they do not say or do anything to indicate consent, and where a condom is removed or tampered with contrary to an agreement (“stealthing”).
The Reasonable Belief Requirement
The most significant change concerns “reasonable belief in consent”. Under section 36A, a belief in consent is not reasonable unless, within a reasonable time before or at the time of the act, the accused said or did something to find out whether the other person consented. Silence, passivity, or an assumption based on past intimacy is not enough. A narrow exception exists where a cognitive impairment or mental illness (not caused by self-induced intoxication) substantially explains the failure to say or do anything.
Why the Date of the Conduct Matters
This is one of the most important practical points in the whole area. Conduct before 30 July 2023 — including historical allegations — is assessed under the law as it stood at the time, which differs materially from the current affirmative consent model. Identifying the correct legal test for the date of the alleged conduct is an essential first step in any defence.
Consent and Children
Consent is not relevant to most child sexual offences: a child under 16 cannot consent, and a person aged 16 or 17 cannot consent where the other person is in a position of care, supervision or authority. See our child sexual offences page.
How Consent Plays Out at Trial
In contested adult cases, the evidence about what was said and done before and during the relevant act is now often the central battleground of the trial. Careful analysis of that evidence — the communications, the circumstances, and what each person said and did — is where these cases are frequently won or lost.
If you are facing a sexual offence allegation, the consent issue in your case needs careful, early analysis. Contact us for confidential advice.
Frequently Asked Questions
What is affirmative consent in Victoria?
For conduct on or after 30 July 2023, a belief in consent is not reasonable unless you said or did something, at or reasonably near the time, to find out whether the other person consented. Consent means free and voluntary agreement, and silence or assumption is not enough.
When did the consent laws change?
The affirmative consent model commenced on 30 July 2023. Conduct on or after that date is assessed under the new law; conduct before it, including historical allegations, is assessed under the law as it stood at the time, which differs materially.
What is ‘stealthing’?
Stealthing — removing or tampering with a condom contrary to an agreement — is expressly included in the circumstances in which a person does not consent under Victoria’s affirmative consent laws. It can therefore form the basis of a sexual offence charge.
Can I rely on a belief that the other person consented?
Only if your belief was reasonable, which under the current law requires that you said or did something at the time to find out whether they consented. A belief based on silence, passivity or past intimacy will generally not be reasonable. A narrow cognitive-impairment exception exists.
Does consent matter in child sex offences?
Generally no. A child under 16 cannot consent to sexual activity, and a person aged 16 or 17 cannot consent where the other person is in a position of care, supervision or authority. Consent is therefore not a defence to most child sexual offences.
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If you are under investigation or have been charged, contact us before taking any other step — including before any police interview. We provide experienced, discreet, fixed-fee representation across Victoria.
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