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Consent and Sexual Offences

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

"Consent" is a legal concept of critical importance in relation to many offences but particularly in relation to offences of a sexual nature such as:

Quite often the guilt or innocence of an accused person will turn entirely upon issues such as:

  • Whether the complainant consented
  • Whether the accused knew or was reckless as to whether the consented
  • Whether the consent of the complainant was vitiated due to the circumstances in which it was given

What is and isn’t consent?

"Consent" must be free and voluntary.

There are a variety of circumstances in which consent is negated including where:

  • The complainant lacks the capacity to give consent due to age or cognitive impairment
  • Consent is induced through threats or force or unlawful detention
  • Consent is given under a mistaken belief induced by fraudulent means including as to the identity of the other person, their marital status to the other person, or that the act is necessary for health reasons

Indicators of a lack of consent include where the complainant is severely intoxicated, or is intimidated, or where the accused has abused a position of trust or authority over the complainant.

It is not necessary that a complainant offer physical resistance or even clearly state "no" for there to be a lack of consent. However the entire conduct of a complainant before, during and after sex will be taken into account in determining whether they did or did not consent.

Where a complainant is under 16 years of age consent will almost never be a defence.

Cross-examining a complaiant on the issue of consent is an excercise that requires enormous skill and sensitivity. The slightest misstep can turn a jury or Magistrate against an accused or give the complainant the opportunity to muster sympathy. If you are charged with a sexual offence you will need expert representation.

What if an accused person is mistaken about consent?

In most cases the prosecution must prove beyond a reasonable doubt not only that the complainant did not consent but that the accused knew the accused did not consent or was reckless as to whether the complainant consented.

An accused is reckless as to consent if they realize there is a possibility that the complainant is not consenting but proceed with sex anyway. A failure to consider the issue of consent at all has been held to amount to recklessness.

In determining whether an accused person knew or was reckless as to a lack of consent the jury or tribunal of fact cannot take into account any impairment of the accused’s judgment resulting from self induced intoxication.

The state of mind of the accused at the time of an alleged sexual offence is often one of the stronger aspect of their defence but again, sensitive and expert legal representation is required. If you are a suspect you should seek legal advice immediately.



where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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