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Defence of Consent

The absence of consent and awareness of non consent by the accused are elements of many sexual offences. The prosecution must prove beyond reasonable doubt that the activity alleged occurred without consent and that the accused was aware of the absence of consent.

The accused may raise a defence that the alleged sexual activity was consensual.

Consent and Awareness of Non-Consent

Section 36 of the Crimes Act 1958 defines “consent” to mean “free agreement” and describes (non-exclusively) seven particular circumstances where a person “does not freely agree to an act”.

Sexual Offences Where Consent is Relevant

Consent will generally be relevant to the following offences, as it is an element of each offence that there be an absence of consent:

  • Rape (s38(2)(a))
  • Rape (Failure to withdraw(s38(2)(b)))
  • Compelled Rape (s38(3)(a))
  • Compelled Rape (Failure to withdraw (s38(3)(b)))
  • Compelling Sexual Penetration (s38A)
  • Indecent Assault (s39)
  • Assault with Intent to Rape (s40)

Consent may be relevant to the following offences, as it is an element of the offence that there be an absence of consent in the particular circumstances identified in the offence provision:

  • Incest (s44 – as relevant to the defence of compulsion)
  • Sexual Penetration of a Child Under the Age of 16 (s45)
  • Indecent Act With Child Under the Age of 16 (s47)
  • Sexual Penetration of a 16 or 17 Year Old Child (s48)
  • Indecent Act With 16 or 17 Year Old Child (s49)
  • Indecent Act With 17 Year Old Child (s49 – repealed)
  • Sexual Penetration of a Person with a Cognitive Impairment (s51(1), s52(1))
  • Indecent Act with a Person with a Cognitive Impairment (s51(2), s52(2))

Meaning of “Consent”

  • “Consent” is defined in s36 of the Crimes Act 1958 to mean “free agreement”. Section 36 of the Crimes Act 1958 lists situations in which a person is regarded as not having given free agreement.
  • Submission in circumstances of “force or fear of force” is not consent.
  • Submission because of “the fear of harm of any type to that person or someone else” is not consent.
  • If a person is “so affected” by drugs or alcohol as to be incapable of free agreement. Mere impairment of judgement or reduction of inhibitions does not negate free agreement.
  • If a person is incapable of understanding the sexual nature of the act. It must be proved that the person was unable to comprehend either that what is proposed is the physical fact of penetration, or that the act of penetration proposed is sexual.
  • A person who understands the sexual nature of an act may be nevertheless incapable of freely agreeing to it, if that person is intellectually unable to make a refusal of consent or unable to understand his or her right to refuse consent.
  • Where a person has a mistaken belief that the sexual penetration was for either a medical or hygienic purpose.

Directions on consent (s37AAA)

Where consent is in issue, and where relevant the judge must direct the jury in respect of the matters set out in s37AAA. They are:

  • the meaning of consent set out in section 36;
  • that the law deems a circumstance specified in section 36 to be a circumstance in which the complainant did not consent;
  • that if the jury is satisfied beyond reasonable doubt that a circumstance specified in section 36 exists in relation to the complainant, the jury must find that the complainant was not consenting;
  • that the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person’s free agreement;
  • that the jury is not to regard a person as having freely agreed to a sexual act just because—
    (i) she or he did not protest or physically resist; or
    (ii) she or he did not sustain physical injury; or
    (iii) on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person.

Directions on the accused’s awareness (s37AA)

In appropriate circumstances the judge must direct the jury:

[I]n considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider—

  • any evidence of that belief; and
  • whether that belief was reasonable in all the relevant circumstances having regard to—
  • in the case of a proceeding in which the jury finds that a circumstance specified in section 36 exists in relation to the complainant, whether the accused was aware that that circumstance existed in relation to the complainant; and
  • whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and
  • any other relevant matters. Other relevant matters may include a discussion of the impact of the accused’s intoxication on his or her capacity to interpret the complainant’s words or conduct.

Awareness and belief

The significance of the reasonableness of the accused’s belief

The jury must consider the reasonableness of the accused’s belief in consent. This direction does not make it an element of any offence that the accused’s belief in consent be reasonable. Instead, the reasonableness of belief is relevant only to the jury’s assessment of whether or not the belief was in fact held.

If there is no evidence on which the jury could properly conclude that the accused believed that the complainant consented, there is no need to direct the jury about the issue.

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