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The Defence of Consent

When a person is charged with a sexual offence where the alleged victim is an adult, they have a legal defence if the victim consented (with the exception of incest, for which consent is irrelevant). Consent is the only legal defence to rape, which is also known as sexual penetration without consent or sexual assault. Definitions of these offences vary and as a result the defence of consent operates differently in different states and territories. This page focusses on how the defence of consent applies to rape offences across Australia.

Definitions of rape

In all jurisdictions, rape involves a physical element and in some jurisdictions, it also involves a mental element.

The physical element of rape is sexual penetration, or sexual intercourse, with a person without their consent.

The mental element of rape differs between different states and territories. The mental element may be intention or recklessness, or there may be no mental element.

What is consent?

Consent is variously defined as meaning free agreement, free and voluntary agreement or consent freely and voluntarily given.

Each state and territory has different laws prescribing the age at which a young person can validly consent to sex with an adult. The relevant age of consent may be 16, 17 or 18 depending on the state or territory and the surrounding circumstances.

In all jurisdictions, a person is not taken to consent to an act if they submit because of force, fear of force, fear of harm, because they are unlawfully detained, or because they are asleep, unconscious or so affected by alcohol or drugs that they are incapable of consenting.

Various pieces of legislation at state and territory level explicitly set out circumstances where a person does not consent, including where the person:

  • is mistaken about the nature of the act;
  • is mistaken about the identity of the other person;
  • is incapable of understanding the nature of the act;
  • does not do or say anything to indicate consent;
  • has withdrawn their consent.

Consent in Victoria

A person is guilty of rape under section 38 of the Crimes Act 1958 if they sexually penetrate another person without the other person’s consent and do not reasonably believe that the other person consents.

The defence of consent applies in Victoria if:

  • the alleged victim consented; or
  • the accused reasonably believed that they were consenting.

Consent in New South Wales

In New South Wales, sexual assault under section 61I of the Crimes Act 1900 is defined as sex with another person knowing that the other person does not consent to sex.

The defence of consent in New South Wales applies if:

  • The alleged victim consented; or
  • The accused did not know that the alleged victim was not consenting.

Consent in Queensland

In Queensland, a person is guilty of rape under section 349 of the Criminal Code 1899 if they have sex with another person without the other person’s consent.

A person charged with rape in Queensland has a defence if the alleged victim consented to sex. The accused does not have a defence if they mistakenly believed that they other person were consenting.

Consent in the ACT

In the ACT, a person is guilty of sexual intercourse without consent under section 54 of the Crimes Act 1900 if they have sexual intercourse with another person without the other person’s consent and are reckless as to whether the other person consents.

The defence of consent applies in the ACT if:

  • The other person consented; or
  • The accused believed on reasonable grounds that the other person consented.

Consent in Western Australia

In WA, sexual penetration without consent is an offence under section 325 of the Criminal Code Act Compilation Act 1913. The offence does not involve a mental element and requires only that the accused sexually penetrated a person without the person’s consent.

The defence of consent applies in WA only if the alleged victim actually consented to sex. There is no defence in a situation where the accused mistakenly believed that the other person was consenting.

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

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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