Victorian Current Acts

CRIMES ACT 1958 - SECT 36AA

    (1)     Circumstances in which a person does not consent to an act include, but are not limited to, the following—

        (a)     the person does not say or do anything to indicate consent to the act;

        (b)     the person submits to the act because of force, a fear of force, harm of any type or a fear of harm of any type, whether to that person or someone else or to an animal, regardless of—

              (i)     when the force, harm or conduct giving rise to the fear occurs; and

              (ii)     whether it is, or is a result of, a single incident or is part of an ongoing pattern;

Examples

Each of the following is a type of harm that can be done to a person as described in this paragraph—

(a)     economic or financial harm;

(b)     reputational harm;

(c)     harm to the person's family, cultural or community relationships;

(d)     harm to the person's employment;

(e)     family violence involving psychological abuse or harm to mental health;

(f)     sexual harassment.

        (c)     the person submits to the act because of coercion or intimidation—

              (i)     regardless of when the coercion or intimidation occurs; and

              (ii)     whether it is, or is a result of, a single incident or is part of an ongoing pattern;

        (d)     the person submits to the act because the person is unlawfully detained;

        (e)     the person submits to the act because the person is overborne by the abuse of a relationship of authority or trust;

        (f)     the person is asleep or unconscious;

        (g)     the person is so affected by alcohol or another drug as to be incapable of consenting to the act;

        (h)     the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act;

Note

This circumstance may apply where a person gave consent when not so affected by alcohol or another drug as to be incapable of consenting.

              (i)     the person is incapable of understanding the sexual nature of the act;

        (j)     the person is mistaken about the sexual nature of the act;

        (k)     the person is mistaken about the identity of any other person involved in the act;

        (l)     the person mistakenly believes that the act is for medical or hygienic purposes;

        (m)     the act occurs in the provision of commercial sexual services and the person engages in the act because of a false or misleading representation that the person will be paid;

        (n)     if the act involves an animal, the person mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes;

        (o)     the person engages in the act on the basis that a condom is used and either—

              (i)     before or during the act, any other person involved in the act intentionally removes the condom or tampers with the condom; or

              (ii)     the person who was to use the condom intentionally does not use it;

        (p)     having given consent to the act, the person later withdraws consent to the act taking place or continuing.

    (2)     For the purposes of subsection (1)(m), a false or misleading representation may be made by words or conduct (including by omission) and may be explicit or implicit.

S. 36AA(3) repealed by No. 7/2022 s. 39A (as amended by No. 38/2022 s. 19).

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S. 36A inserted by No. 47/2016 s. 5, substituted by No. 38/2022 s. 8.