Text as at 26 April 2026

This provision has not been checked by a human. The text below was read automatically from the official PDF and has not yet been verified against it, so it may differ from the provision as published — in its wording, its numbering, or where one provision ends and the next begins. For the authorised text, see legislation.vic.gov.au.

34AH Sexual activity and consent defence—circumstances in which a person does not consent

For the purposes of section 34AF(1)(b), circumstances in which a person does not consent to the conduct constituting the offence include, but are not limited to, the following—

S. 34AH inserted by No. 37/2023 s. 3.

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

(b)the person submits to the conduct 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, 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;

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 conduct 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 conduct because the person is unlawfully detained;

(e)the person submits to the conduct 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 conduct;

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

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)having given consent to the conduct, the person later withdraws consent to the conduct taking place or continuing.