This defence is used primarily in cases where absence of consent is required; specifically for crimes of a sexual nature.

The law defines consent as ‘free agreement’. In cases where consent needs to be established, the prosecution must prove, beyond reasonable doubt, that the acts of the accused were nonconsensual and that the accused was aware of it being non-consensual.

The defence of consent is used where the absence of consent is an element to determining whether a criminal offence has occurred or not. This is most often the case in sexual offence cases, where the absence of consent contributes to allegations of rape or sexual assault.

In matters of crimes of a sexual nature, there are instances where the law will automatically consider a person unable to give consent. The provision and gaining of consent is a highly complex issue, and while the Crimes Act 1958 (Vic) provides a list of these instances where legal consent cannot be given, it should not be considered exhaustive and is constantly evolving.

Circumstances in which a person does not consent to a sexual act include:

  • Where a person is incapable of understanding the sexual nature of the act;

  • Where a person is mistaken about the sexual nature of the act;

  • When a person is asleep or unconscious;

  • When having given consent, a person later withdraws their consent to the sexual act taking place or continuing;

  • When a person is so affected by alcohol or another drug as to render them unable of providing consent to the act;

  • When a person submits to the act because they fear harm of any kind to themselves, someone else, or to an animal.

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