The Crimes Act (Vic) clarifies the concept of consent and reaffirms the fundamental right of a person to elect not to engage in sexual activity.

The law says that unlawful sexual penetration (i.e. rape) occurs when someone does not agree to any penetration of the vagina, mouth or anus by a penis, or by another part of the body, such as a finger, tongue, or other object. The "vagina" is prescribed to include the external genitalia and a surgically constructed vagina. It is not necessary as a matter of law for there to have been emission of semen for a finding that there has been sexual penetration. Failure of a male to withdraw upon becoming aware that a person might not be consenting is also rape.

Consent means free agreement. Free agreement is not present if a person:

The law also states that:

An accused can still argue that he or she honestly (and not unreasonably) believed that the victim was freely agreeing. However, the jury must take into account whether that belief was reasonable in the circumstances. This definition of free agreement has reduced the number of cases in which the defence of "honest mistake" was made.

It is also a criminal offence to assault or threaten to assault another person with intent to commit rape.

Rape in marriage is also unlawful and can be prosecuted under the provisions for rape in the Crimes Act (Vic).

A person found guilty of rape may be imprisoned for up to 25 years.

It is an offence to assault someone indecently while being aware that the person is not consenting or might not be consenting. Such an assault generally involves some form of inappropriate touching of the genital area or of a woman's breasts.

It is an offence for a person to administer a drug or anything else, or to cause a drug to be taken by a person, where the intention is to render that person incapable of resisting and so enable the first person or someone else to sexually penetrate the victim.

"Administer" is a broad term meaning something more than "supply" or "provide", and involves the giving of some real encouragement for the use of the drug.

Incest takes place when there is sexual penetration of a person who the offender knows is his or her child or other "lineal descendant", or is his or her step-child, or the child or other lineal descendant or step-child of his or her de facto spouse, or his or her father or mother, or lineal ancestor, or step-father, step-mother, sister, half-sister, brother or half-brother.

Consent is not a defence for incest, although coercion by the other party is. Incest of a non-penetrative kind falls within the indecent assault or indecent act category, and is also a criminal offence.

The following are presumed unless the accused provides contrary evidence:

The Crimes Act (Vic) describes three age categories where sexual activity with a young person is unlawful, and attaches different consequences to each one.

The law recognises the need to provide special protections for people regarded as having "impaired mental functioning". This includes anyone with an intellectual or psychiatric disability, with dementia or a brain injury.

Sexual relations between workers at a residential facility and residents of that facility are prohibited. In relation to people hospitalised for mental illness, this prohibition applies to gazetted public psychiatric hospitals where people may be detained involuntarily. The ban applies in relation to any premises operated wholly or substantially to house intellectually disabled people.

Corroboration is not required for proof of these offences.

There are specific guidelines for reporting allegations of physical or sexual assault against people with impaired mental functioning and in the care of the Department of Human Services (DHS). The guidelines require that all allegations of physical and sexual assault must be reported to the police, even if a client does not consent to the matter being reported. The client may choose not to answer questions asked by the police. This would probably prevent a prosecution being initiated.

If a client is not in the care of the DHS and is able to make an informed decision, an allegation of physical or sexual assault will often not be reported to the police against the client's wishes.

The Crimes Act (Vic) makes it unlawful for providers of medical or therapeutic services to commit a sexual penetration of, or an indecent act on, a person with impaired mental functioning. However, the ban only applies when the provision of services relates to the impaired mental functioning, so not to the provision of medical services generally. The ban applies whether or not the person is an in-patient. Sexual relations includes non-penetrative abuse. Corroboration is not required for proof of the offences.

For further information and support, contact:

See: "Contacts" at end of chapter for contact details of these services.

The Crimes Act (Vic) and Part IIIA of the Crimes Act 1914 (Cth) ("Crimes Act (Cth)") prescribe that a number of other activities are unlawful, including: