Under the Crimes Act 1958 (Vic) as it stood at the time of the alleged offending, 'free agreement' in s 34C(1) encompasses a broader conception of consent than the common law, extending to the freedom to choose the manner in which physical penetration occurs. Where a complainant expressly conditions consent to sexual penetration on the use of a condom, and the other party deliberately removes the condom without the complainant's knowledge, it is open to a jury to find that the complainant did not freely agree to the act of penetration that occurred. The existence of the offence of procuring sexual penetration by fraud under s 57 does not preclude a charge of rape under s 38 on the same facts. However, the dissent raises a substantial argument that the defined act of 'sexual penetration' in s 37D is exhaustive and that the concept of consent cannot be used to extend it.
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