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Consent and Sexual Offences

“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 complainant consented
  • Whether the consent of the complainant was vitiated due to the circumstances in which it was given

What Is Consent?

Consent must be 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 spelt out at Section 67 of the Crimes Act 1900 (ACT) and are where consent is obtained:

  • by the infliction of violence or force on the person, or on a third person who is present or nearby; or
  • by a threat to inflict violence or force on the person, or on a third person who is present or nearby; or
  • by a threat to inflict violence or force on, or to use extortion against, the person or another person; or
  • by a threat to publicly humiliate or disgrace, or to physically or mentally harass, the person or another person; or
  • by the effect of intoxicating liquor, a drug or an anaesthetic; or
  • by a mistaken belief as to the identity of that other person; or
  • by a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person; or
  • by the abuse by the other person of his or her position of authority over, or professional or other trust in relation to, the person; or
  • by the person’s physical helplessness or mental incapacity to understand the nature of the act in relation to which the consent is given; or
  • by the unlawful detention of the person.”

A person who does not offer actual physical resistance to sexual intercourse shall not, by reason only of that fact, be regarded as consenting to the sexual intercourse.

If it is established that a person who knows the consent of another person to sexual intercourse or the committing of an act of indecency has been caused by any of the means listed above, the person is deemed to know that the other person does not consent.

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 he or she did or did not consent.

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

Cross-examining a complainant on the issue of consent is an exercise 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 Is 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 complainant did not consent or was reckless as to whether the complainant consented.

An accused is reckless as to consent if he or she realises there is a possibility that the complainant is not consenting but proceeds 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 judge or magistrate 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 aspects of a defence but, again, sensitive and expert legal representation is required. If you are a suspect you should seek legal advice immediately.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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