Victorian Current Acts Victorian Current Acts(1) For the purposes of section 34AF(1)(b)(ii) , whether or not A reasonably believes that B is consenting to the conduct constituting the offence depends on the circumstances.
Note
See section 34AJ for the effect of intoxication on the standard to be applied in determining whether A had a reasonable belief.
(2) A's belief that B consents to the conduct constituting the offence is not reasonable if, within a reasonable time before or at the time the conduct takes place, A does not say or do anything to find out whether B consents to the conduct.
(3) Subsection (2) does not apply if—
(a) A has a cognitive impairment or mental illness (other than the effects of intoxication that is self-induced within the meaning of section 34AJ); and
(b) that cognitive impairment or mental illness is a substantial cause of A not saying or doing anything to find out whether B consents to the conduct constituting the offence.
(4) A bears the burden of proving on the balance of probabilities the matters referred to in subsection (3).
Note
References to A and B in this section are references to the same A and B referred to in section 34AE.
S. 34AJ inserted by No. 37/2023 s. 3.