Victorian Numbered Acts

CRIMES AMENDMENT (RAPE) ACT 2007 (NO. 57 OF 2007) - SECT 4

After section 37 of the Crimes Act 1958 insert —

        " 37AAA     Jury directions on consent

For the purposes of section 37, the matters relating to consent on which the judge must direct the jury are—

        (a)     the meaning of consent set out in section 36;

        (b)     that the law deems a circumstance specified in section 36 to be a circumstance in which the complainant did not consent;

        (c)     that if the jury is satisfied beyond reasonable doubt that a circumstance specified in section 36 exists in relation to the complainant, the jury must find that the complainant was not consenting;

        (d)     that the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person's free agreement;

        (e)     that the jury is not to regard a person as having freely agreed to a sexual act just because—

              (i)     she or he did not protest or physically resist; or

              (ii)     she or he did not sustain physical injury; or

              (iii)     on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person.

        37AA     Jury directions on the accused's awareness

For the purposes of section 37, if evidence is led or an assertion is made that the accused believed that the complainant was consenting to the sexual act, the judge must direct the jury that in considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider—

        (a)     any evidence of that belief; and

        (b)     whether that belief was reasonable in all the relevant circumstances having regard to—

              (i)         in the case of a proceeding in which the jury finds that a circumstance specified in section 36 exists in relation to the complainant, whether the accused was aware that that circumstance existed in relation to the complainant; and

              (ii)     whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and

              (iii)     any other relevant matters.".