Affirmative Consent (Vic)

By James Stevens, Director and Solicitor, Go To Court Lawyers. Last reviewed 20 April 2026.

In July 2023, Victoria’s affirmative consent laws came into effect. Under an affirmative consent model of sexual consent, a person has a positive responsibility to check that all participants to sexual activity consent to all aspects of the activity, and that the consent is ongoing. This page outlines Victoria’s affirmative consent laws and the impact of the changes.

Legislation

The Crimes Legislation Amendment (Sexual Offences and Other Matters) Act 2022 made changes to the Crimes Act 1958 and to other legislation.   

Sexual offences

All sexual offences against adults, with the exception of incest, are based on a lack of consent by the complainant.

A person charged with a sexual offence involving a lack of consent has a defence available if:

• the complainant consented to the act; or
• the accused believed on reasonable grounds that the complainant consented to the act.

Since the introduction of affirmative consent provisions, the law is much clearer on what may be taken to constitute a reasonable belief.  

Definition of consent

Section 36 of the Crimes Act 1958 defines consent as free and voluntary agreement.

A person does not consent just because:

• they do not offer verbal or physical resistance
• because they consented to a different act with the same person
• because they consented to the same act with the same person at another time
• because they consented to the same act with a different person
• because they consented to a different act with a different person.

Where there is no consent

Section 36AA has now been added to the Crimes Act 1958. This provision specifies that a person does not consent if:

• they do not do or say anything to indicate consent
• they submit to the act because of force, fear of force, harm or fear of harm.

Reasonable belief in consent

The most significant change to Victoria’s laws around consent is the addition of section 36A into the Crimes Act 1958.

This provision specifies that a person charged with a sexual offence does not have a defence if they believed that the other person consented to the act but took no steps to find out if they consented.

This means that there is now a requirement that the accused must have done or said something to find out whether the other person consented to the act.

A belief in consent where a person has done nothing to communicate their consent is not reasonable.

What has changed?

The introduction of affirmative consent laws in Victoria means that there is now a positive duty on a person who engages in sexual activity to take active steps to find out if the other person consents.

A person may no longer rely on stereotypes or assumptions about another person’s consent. A belief in consent must be reasonable and based on consent having been actively communicated.

Impact of affirmative consent laws

The adoption of an affirmative consent model in Victoria has led to improved education programs and public awareness about consent, reinforcing the message that consent must be enthusiastic, ongoing and mutual.

Prosecutors and jurors now have clearer definitions of consent and of reasonable belief.

Victorian Attorney-General Jaclyn Symes said:

“Victorians have made it clear there’s no room for victim-blaming and outdated attitudes around sexual violence – these new affirmative consent laws will ensure our justice system keeps up with those expectations.”

As the reforms were passed quite recently, there is little case law on how the requirement for affirmative consent is being applied. Proving an absence of consent remains challenging, and ongoing training is needed for lawyers, police and judges to ensure that the new standard is applied correctly.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.