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Module 9 · Sexual offences

Sexual offences are essay material more than problem material. The recurring essay themes: whether the law takes sufficient account of context, whether it can be entirely principled, whether it treats people as equals, and whether moral culpability and legal responsibility properly correlate, each listing non-consensual sexual offending as an option. This module is therefore built for the essay. The doctrine is walked cleanly so the statutory scheme is understood, and the main weight falls on the reform arc from Morgan to affirmative consent and the live critiques the examiners reward. The law is the Crimes Act 1958 (Vic) as it now stands after the 2022 affirmative consent amendments, so the operative provisions are ss 35A to 41 with consent in ss 36 to 36B. Older materials cite the consent-negating circumstances as s 36(2). That list now lives in s 36AA and this guide uses the current numbering throughout.

Cases at a glance

The four offences

Four offences carry the module and they share one architecture. Each pairs a conduct element with the same two consent elements: the complainant does not consent, and the accused does not reasonably believe the complainant consents. Learn the architecture once and every offence becomes a variation on it.

The intention element attaches to the penetration and is usually proved by the same evidence that proves the act (s 38(1)(a)). The contest sits in the two consent elements, and they are analysed separately: whether the complainant consented is about the complainant's free agreement, and whether the accused reasonably believed in consent is about the accused. Facts often serve both questions, but the elements must never be merged.

Two points in the definition decide exam questions. First, penetration to any extent counts, however slight and however fleeting (s 35A; Randall v R (1991) 55 SASR 447 (SA); Anderson v R [2010] VSCA 108 (Vic); W&W 4.28). Vagina includes the external genitalia (s 35), and the definition extends to a surgically constructed vagina (s 35(3); W&W 4.28, 4.30). Second, the definition covers the continuing act. Where penetration begins with consent and consent is then withdrawn, the failure to withdraw is itself sexual penetration without consent. This is because the definition includes continuing to keep the body part or object there once introduced, which removes the need to distinguish between an act of penetration and a failure to withdraw (s 35A(1)(d)–(f), W&W 4.29; and see the equivalent paragraphs of the 2015–2017 definition, s 37D(1)(d)–(f), charge book 7.3.1 [24]). This puts into statute the holding that sexual intercourse is a continuing act which only ends with withdrawal (Kaitamaki). Penetration for a proper medical or hygienic purpose is an exception to the offences rather than part of the definition, and the accused bears the evidentiary burden of raising it (s 50G).

Compulsion is not a separate element: it is the combination of causing the act and the complainant not consenting, and the causing may be by force, threats, deception or anything else. Section 38 is confined to the case where the accused is themself the penetrator, and s 39 gathers every compelled scenario, including where a third person penetrates the complainant (s 39(1)(a)(iv)).

Sexual assault is rape's architecture applied to touching. Touching may be with any body part or anything else and through anything including clothing, and no force or injury is required (s 35B(1)). Touching may be sexual because of the area touched or used, because the toucher seeks or gets sexual gratification, or because of any other aspect including the circumstances (s 35B(2)), so the same contact can be sexual in one setting and not in another. It is no defence that the accused honestly and reasonably believed the touching was not sexual (s 48B).

Section 41 parallels s 39 exactly as s 40 parallels s 38. Around the four sit allied offences worth a passing sentence in an essay on the scheme's reach: procuring a sexual act by threat or by fraud (ss 44 and 45), administering an intoxicating substance for a sexual purpose (s 46), and threats and assaults with intent (ss 42 and 43).

Consent as free agreement

Having set out the offences we turn to the element that defines them. The statute rejects the old framing of rape as intercourse against the victim's will, with its focus on force and resistance, in favour of consent as the exercise of sexual autonomy. The Act's stated objective is to uphold the fundamental right of every person to make decisions about their sexual behaviour and to choose not to engage in sexual activity (s 37A(a)). That autonomy rationale is the thread that runs through every reform in this module and it anchors the essay.

The definition embodies a communicative model. Consent is not merely an internal attitude of willingness. It is an agreement between people, and if nothing is said or done to indicate consent there is no consent (s 36AA(1)(a)). Juries may be told that people who do not consent need not be injured or resist, that there is no typical or normal response, and that a person might freeze and not say or do anything (Jury Directions Act 2015 ss 47D and 47E). The freeze response is therefore inside the model rather than an objection to it.

The list does the prosecution's work in the clear cases: prove one listed circumstance beyond reasonable doubt and non-consent is established without more. But the list is expressly non-exhaustive and does not narrow the general definition, so where the facts fall outside every paragraph the question is whether the complainant freely and voluntarily agreed under s 36(1) (DPP v Yeong (Vic CA); charge book 7.3.1 [29]–[31]). The complainant who is drowsy but not asleep, or substantially affected by alcohol but still capable of consenting, is judged on free agreement rather than forced into a paragraph that does not fit.

The fraud borderline

Mistake and deception are where the doctrine gets hard and where the essay material lives. The common law drew a narrow line: a mistake negated consent only where it went to the nature and character of the act or the identity of the other person, and fraud in the inducement left consent standing (Papadimitropoulos). So an act passed off as a surgical operation was rape (Flattery (Eng)), as was a choirmaster's pretence that a pupil needed more air to improve her singing. This is because the complainant did not understand the sexual nature of what was done (Williams (Eng)). But a man who obtained consent by faking a marriage ceremony committed no rape. This is because the complainant's consent comprehended the nature of the act and the identity of the man, and the inducing cause could not destroy its reality (Papadimitropoulos). A radiographer who inserted an ultrasound transducer where the prosecution alleged no medical purpose was likewise not guilty. This is because the act done was the act consented to (Mobilio (Vic Full Court)). A client who never intended to pay was not guilty. This is because fraud as to payment was inducement rather than nature (Linekar (Eng)). And non-disclosure of a disease did not negate consent (Clarence (Eng), which the majority in Aubrey determined should no longer be followed on a different point: W&W 3.58).

The statute has now overtaken parts of that line. Mistakes as to the sexual nature of the act, the identity of any person involved, and medical or hygienic purpose are listed circumstances, so Mobilio is displaced on the medical-purpose point by s 36AA(1)(l), while its account of capacity to consent still stands (charge book 7.3.1 [38]–[40]), and the Flattery and Williams results are codified in s 36AA(1)(j). The Linekar scenario is captured for commercial sexual services by s 36AA(1)(m). But the Papadimitropoulos marriage mistake is not on the Victorian list, and a mistaken belief that a partner is disease-free is not either, so on those facts the common law's caution appears to survive unless a court finds free agreement absent under s 36(1). Keep the taxonomy crisp: mistake as to the sexual nature of the act always vitiates, listed mistakes vitiate by statute, and other collateral mistakes vitiate only if they defeat free agreement itself.

Stealthing shows the general definition working beyond the list. Where a complainant agreed to penetration on the express condition that a condom be worn and the accused covertly removed it, the Court of Appeal held a jury could find no free agreement. This is because free agreement extends to the freedom to choose the manner in which penetration occurs (DPP v Yeong). Parliament then added the condom paragraph, s 36AA(1)(o), which puts the result beyond argument. Frauds that fall outside consent altogether may still be prosecuted as procuring a sexual act by fraud, an offence with no consent element (s 45).

Reasonable belief in consent

The second consent element is the fault element, and since the 2014 and 2016 reforms it has been objective. The sole question is whether the accused did not reasonably believe the complainant was consenting (s 38(1)(c)). Knowledge and recklessness are no longer separate categories. This is because an accused who knows the complainant is not consenting, or knows she might not be, holds no belief in consent at all.

Run the routes in that order. Knowledge of non-consent and the empty mind are quick findings where the evidence supports them. The third route is where analysis happens, and it proceeds in two steps: did the accused hold the belief, and was it reasonable for this accused to hold it.

Section 36A(2) is the affirmative consent provision and it is the 2022 reform's sharpest edge. The earlier law asked the jury to consider any steps the accused took to find out whether the complainant consented, and in New South Wales a ‘step’ was held to include a mere mental process of reasoning (Lazarus v R [2016] NSWCCA 52 (NSW), decided on the NSW provision). That interpretation prompted parallel amendments in both States, replacing ‘step’ with consideration of the circumstances: Crimes Act 1900 (NSW) s 61HK and Crimes Act 1958 (Vic) s 36A (W&W 4.94). The new provision demands something said or done. An accused who did neither is fixed with an unreasonable belief, subject to one exception: an accused who proves on the balance of probabilities that a cognitive impairment or mental illness was a substantial cause of the silence and inaction is outside the provision (s 36A(3)). Knowledge matters too. If the jury finds the accused knew or believed that a listed consent-negating circumstance existed, that is enough to show the accused did not reasonably believe in consent, though the jury is not compelled to so find (Jury Directions Act 2015 s 47(3)(a)).

The case that made the reform legible is Hubbard v The Queen [2020] VSCA 303 (Vic CA). The complainant's evidence that she was asleep was described by T Forrest AJA, with Weinberg JA and Lasry AJA agreeing, as ‘cogent and reliable’, with ‘no reason to disbelieve it’ (at [38]). The accused nonetheless pointed to minimal movements said to convey consent, and his Honour considered there was ‘a reasonable possibility that the complainant carried out the activities attributed to her by the applicant while not sufficiently awake to recall doing so’ (at [41]). No disposition is stated here because no source consulted states one. What matters for the reform story is that holding: it showed how little conduct could found a possibly reasonable belief, and the affirmative amendments answer it by demanding that the accused say or do something to find out (W&W 4.95; s 36A(2)).

The governing footing is statutory: s 47(4) supplies good reasons for not giving the personal-attributes direction where the attribute did not affect the accused's perception or understanding of the objective circumstances, was something the accused was able to control, or was a subjective value, wish or bias. The standard is therefore neither the hypothetical reasonable person nor whatever the accused thought reasonable. Values do not count, so a belief drawn from views about how women dress cannot be made reasonable by the sincerity of the views, and a belief is not reasonable if it rests on a general assumption about the circumstances in which people consent (Jury Directions Act 2015 s 47I). The jury must also consider what the community would reasonably expect of the accused in the circumstances (s 47(3)(d)). Aubertin v Western Australia (2006) 33 WAR 87 (WA Court of Appeal, McLure JA) is the source of that division, but it was decided on s 24 of the Criminal Code (WA), not on the Victorian belief element. The Charge Book says only that the Victorian Act ‘appears designed to adopt this same division’ and warns that its table of relevant and irrelevant attributes ‘must be used with caution, as there is no guidance yet on exactly how section 47(3)(e) and 47(4) operate’ (7.3.1 [93]–[94]). Treat Aubertin as persuasive, interstate and on a Code provision.

The policy is the familiar one: judgment cannot become reasonable because it was drunk. A person who got themself intoxicated is held to the sober standard, and only blameless intoxication earns a standard adjusted to it (s 36B(1); Jury Directions Act 2015 s 47(4)).

The reform arc and the essay

This section carries the module's essay marks. Every essay stem the examiners have set, context and choice, principle and danger, equality, and the culpability correlation, is answered from the same arc and the same handful of critiques. Learn the arc as three moves, then take a side on each strand.

The engine of the arc is autonomy. Each move re-centres the law on the complainant's right to decide about their own sexual activity (s 37A(a)) and shifts responsibility onto the person initiating sex to ensure agreement is real and communicated. The counter-pressure at every step is the criminal law's ordinary principle that serious offences require a guilty mind. The essay is the contest between those two forces, and the 2024 feedback rewards three strands of it.

Strand one: internal willingness and s 36AA(1)(a)

Section 36AA(1)(a) provides that a person who does not say or do anything to indicate consent does not consent. That makes consent partly performative: an internal state of willingness without any outward indication is not consent in law. The critique runs that this misdescribes the very value the law protects. This is because a complainant who was internally willing to engage in the sexual activity has arguably suffered no violation of sexual autonomy, whatever they failed to communicate. The defence of the provision is protective and evidentiary: consent that exists only inside a mind is invisible to the other party, uncommunicated willingness is indistinguishable in the moment from frozen unwillingness, and a law that let accused persons speculate about inner states would hollow out the communicative model. Is a person wronged when they were willing but silent? If not, is the provision still justified by what it does for everyone who was silent because they could not speak?

Strand two: the mistake limbs

The list treats some mistakes as destroying consent and ignores others. A complainant mistaken about medical purpose does not consent, while one mistaken about a faked marriage, or a partner's disease status, or any other matter that was decisive for them, consents unless free agreement fails on the general definition. The critique asks why the complainant who engages in sexual activity under one of the listed mistaken beliefs is acting less autonomously than the complainant who is materially mistaken in some other way. If autonomy means deciding on one's own terms, any deception that procures the decision looks like a violation, which points toward a general fraud principle. The reply is the caution in Papadimitropoulos (High Court): consent to a comprehended act is real consent, a general fraud rule would criminalise lies about wealth, feelings and fidelity, and the line must sit somewhere short of every inducement, with procuring by fraud (s 45) catching the remainder at a lower level of stigma. Where would you draw the line, and can any line between listed and unlisted mistakes be defended in autonomy's own terms?

Strand three: affirmative consent against the mens rea principle

Under Morgan (HL, Eng) a person could be convicted of rape only if the Crown proved they chose to have non-consensual sex or consciously risked it. The law has moved a long way from that position. An accused is now guilty on an unreasonable belief honestly held, and under s 36A(2) an accused who said and did nothing is in effect deemed to lack reasonable belief. The critique is that these provisions depart from the ordinary rules of mens rea and open the possibility that blameless actors, the socially inept, the genuinely mistaken, will be convicted of the most serious offences short of homicide. The defence is twofold. First, community protection: the subjective test failed victims for decades, let indifference go unpunished, and set a standard the community no longer accepts, and asking a person to say or do something before sex is the lightest of burdens. Second, culpability itself: a person who proceeds without troubling to find out whether their partner agrees is not blameless, and the negligence they display is precisely the fault the offence now names. Against that, has the law simply traded one injustice for another and become excessively concerned with protection at the expense of principle? Whichever side you take, take it early and argue it because the examiners reward a position defended, not a survey.

How the examiners mark essays

The examiners state their criteria plainly: the clarity of your writing, the persuasiveness and reflectiveness of your arguments, and the quality and accuracy of your legal analysis. Tell them early what you intend to argue, then defend it rigorously, and give proper consideration to counter-arguments.

The failure modes are equally specific. Setting out well-known passages from judgments without critically analysing them is marked down, as are arguments with obvious holes, responses that never present a coherent argument, and answers that stay vague and light on the law. Every argument, on either side, must be properly substantiated: the statutory provisions cited by section, the arc told accurately, and the critiques run as genuine contests.

Take it to essay practice

This module is built for the essay: on the papers reviewed for this guide, non-consensual sexual offending appears on the essay menus rather than in the hypotheticals. The drills below test the doctrine; the essay prompts test what the examiners actually mark. Take a prompt below, plan for ten minutes, state your thesis in the opening paragraph, and write the essay in fifty. Then audit it against the criteria above: is the thesis early, is the other side genuinely engaged, is every statement of law accurate and cited.

Practice prompts

1. "The criminal law cannot be entirely principled. That would be dangerous." Do you agree? Discuss with reference to non-consensual sexual offending and ONE other topic of your choice.
2. Does the criminal law ensure that there is a proper correlation between moral culpability and legal responsibility? Discuss with reference to non-consensual sexual offending and ONE other topic of your choice.