Consent and Sexual Offences (ACT)
Consent is a legal concept of critical importance in relation to many sexual offences. Sexual offences against adults such as indecent assault and sexual assault involve sexual contact with another person without the other person’s consent. Whether an accused person is guilty of an offence will often hinge on whether the alleged victim consented to the act. This page outlines how consent is defined in the ACT.
What Is Consent?
Consent is agreement that is free and voluntary. There are a variety of circumstances in which consent is considered not to be free and voluntary and is therefore not validly given. These are set out in section 67 of the Crimes Act 1900.
Under section 67, a person will not be found to have consented to a sexual act if they:
- say or do something to communicate that they are withdrawing their agreement
- participate because of the infliction or threatened infliction of violence or force
- participate because of extortion, coercion, blackmail, intimidation or a fear of public humiliation or disgrace
- participate because of a threat of mental or physical harassment
- participates because of force or fear
- is incapable of agreeing to the act because of intoxication
- is mistaken about the identity of the other person
- participate because of a fraudulent misrepresentation
- participate because of an intentional misrepresentation about the use of a condom
- participate because of an abuse of a relationship of authority or a professional relationship
- are unable to agree because they are unconscious, asleep or unlawfully detained.
Furthermore, a person is not taken to have consented to an act only because they do not say or do anything to resist the act or because they have consented to other acts with the accused person on other occasions.
Offences that involve lack of consent
When a person is charged with a sexual offence against a child, the consent of the victim is generally not a defence. The only exception to this is where the accused person is no more than two years older than the alleged victim and the alleged victim is aged over 10.
When a person is charged with a sexual offence against an adult, the consent of the alleged victim is generally a defence. The only exception to this is the offence of incest. Incest occurs when two people who are close family members – such as siblings or parent and child – have sexual contact. Incest is a criminal offence even where all participants consent.
Mistaken belief about consent
A person will be found guilty of a sexual offence involving lack of consent if they are found to have:
- known that the alleged victim was not consenting; or
- been reckless as to whether the other person was consenting.
A person will be found not guilty based on a mistaken belief that the alleged victim was consenting only if their mistaken belief was reasonable in the circumstances.
Under section 67A of the Crimes Act 1900, when a court is considering whether an accused person’s mistaken belief was reasonable it must consider all the circumstances of the case. However, if the accused was in a state of voluntary intoxication, the court must not take their intoxication into account when assessing reasonableness.
Amendment of the definition of consent
The Crimes Act 1900 was recently amended by the passage of the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021. The changes, which came into effect in 2022, sought to ensure that consent to sex be given actively and affirmatively.
The changes also criminalised the practice known as ‘stealthing’. Stealthing occurs when a person consents to sex on the understanding that a condom will be used, and the other person removes the condom during sex without the victim’s consent.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.