Police can only charge you with rape if you intentionally sexually penetrated another person who has not consented and you did not reasonably believe that other person was consenting (Section 38 of the Crimes Act 1958 (Vic) (‘CA’).

Police can also charge you with rape if you force a person to sexually penetrate you or someone else, or if you force a person who has sexually penetrated you not to stop despite whether previous consent to the act was given.

The exception to this rule is if “the sexual penetration or touching (as the case requires) is of a person and is done in the course of a procedure carried out in good faith for medical or hygienic purposes” (Section 48A CA)

Pursuant to Section 36 of the CA consent CANNOT be give if you are or the other person is, for example:

  • severely affected by alcohol or drugs
  • afraid you or somebody else will be harmed (e.g. “If you don’t […], then I’ll […]”)
  • tricked or deceived (e.g. agree to one type of sexual act that turns into another type of sexual act that they hadn’t agreed to)
  • asleep, unconscious or semi-conscious
  • incapable of understanding, or mistaken about what you’re consenting to
  • believe you can’t, or have no right to say no

Other situations where consent is taken not to be given include:

  • You or another person is incapable of understanding the sexual nature of the act
  • You or another person is mistaken about the sexual nature of the act
  • You or another person is mistaken about the identity of any other person involved in the act
  • You or another person mistakenly believes that the act is for medical or hygienic purposes;
  • If the act involves an animal, you or another person mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes;
  • You or another person does not say or do anything to indicate consent to the act
  • Having given consent to the act, you or another person later withdraws consent to the act taking place or continuing.

Due to the complicated nature of these sexual related offences, the above description has been simplified and kept brief, for more information please give us a call at Jay & Co Barristers and Solicitors