CONSENT

While it is not technically a criminal defence alone, “consent” is usually raised in cases involving offences against the person. Such offences include assaults, like , or .

 

Taking sexual assault as an example of where ‘consent’ may be raised as a criminal defence, section 61I of the Crimes Act 1900 (NSW) provides you can only be guilty of sexual assault where:

 

1. You had sexual intercourse with another person; and

2. The other person didn’t consent; and

3. You knew the other person didn’t consent.

 

The law and principles governing consent in NSW is reflected in section 61HE of the Crimes Act 1900 (NSW). Subsection (2) provides “

"consents" to a sexual activity if the person freely and voluntarily agrees to the sexual activity.”

 

In relation to the accused person’s knowledge about whether the other person is consenting, subsection (3) provides:

 

“A person who without the consent of the other person (the

"alleged victim" ) engages in a sexual activity with or towards the alleged victim, incites the alleged victim to engage in a sexual activity or incites a third person to engage in a sexual activity with or towards the alleged victim, knows that the alleged victim does not consent to the sexual activity if -

(a) the person that the alleged victim does not consent to the sexual activity, or

(b) the person is as to whether the alleged victim consents to the sexual activity, or

(c) the person has that the alleged victim consents to the sexual activity.”

 

It is therefore important that the alleged offender can prove he or she made all reasonable efforts to determine whether the other person is consenting. Self-induced intoxication of the alleged offender will not be taken into account by a Court determining whether he or she knew, was reckless or had no reasonable grounds to believe the other person was not consenting.

 

There are three categories in which the consent of the other person (the alleged victim) is considered by the Court. In some situations, consent is automatically negated or vitiated by virtue of the victim not having the capacity to consent (because of intoxication, age, or cognitive disability), not having the opportunity to consent, being forced to submit because of a threat of force or terror, or because he or she is detained against their will.

 

Section 61HE(5) of the provides four scenarios in which a person cannot give consent to sexual intercourse. This section states:

“A person does not consent to a sexual activity--

(a) if the person to consent to the sexual activity, including because of age or cognitive incapacity, or

(b) if the person to consent to the sexual activity because the person is unconscious or asleep, or

(c) if the (whether the threats are against, or the terror is instilled in, that person or any other person), or

(d) if the person .”

 

Section 61HE(6) provides that a person is deemed not to have provided consent where he or she is under the mistaken belief as to a set of facts and circumstances. For example, if a woman consents to having sexual intercourse with a man who she finds in her bed, and later discovers it is not her husband (or the man she was intending to sleep with), her consent to having sexual intercourse with that man is negated because it was under the mistaken belief that man was her husband. Section 61HE(6) section provides:

“A person who consents to a sexual activity with or from another person under any of the following mistaken beliefs does not consent to the sexual activity--

(a) a mistaken belief as to the identity of the other person,

(b) a mistaken belief that the other person is married to the person,

(c) a mistaken belief that the sexual activity is for health or hygienic purposes,

(d) any other mistaken belief about the nature of the activity induced by fraudulent means.”

 

While the above two categories of consent provide situations where the Court would find the victim did not consent, there are another three situations in which a victim be found to have or have not consented. There is some overlap with the situations envisaged by section 61HE(5), but the following are more specific. Section 61HE(8) provides:

“The grounds on which it be established that a person does not consent to a sexual activity include -

(a) if the person consents to the sexual activity while by alcohol or any drug, or

(b) if the person consents to the sexual activity because of , or other threat, that does not involve a threat of force, or

(c) if the person consents to the sexual activity because of the .”

Whether or not the complainant is found to have consented in any one of the above categories turns on a question of fact. For example, the degree of the complainant’s intoxication would inform a jury (or judge in a judge-alone trial) whether or not the complainant knew what he or she was doing. In these cases, evidence of the blood alcohol concentration, the complainant’s recollection, and observations of his or conduct by other witnesses will be relevant to the question of degree of intoxication and whether the complainant was so inebriated to not be able to consent.

If you have been, or know of someone who has been, charged with an offence of an assault, it is important that he or she obtains independent legal advice about whether the defence of consent may be available. Should you wish to discuss your options, please contact KF Lawyers.