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Consent is an integral part of any sexual offence

Consent is an integral part of any sexual offence. It is the most common defence in sexual assaults. A charge of sexual assault will not prosper if the victim consents to sexual intercourse.

Consent in relation to sexual assault offences is defined as a person’s free and voluntarily agreement to the sexual intercourse (Section 61HA of Crimes Act 1900).

Under Section 61HA, there is no consent when:

  • the person is unconscious or asleep
  • the consent has been obtained by threats of force or terror
  • there is a mistake as to the identity of the person, mistake as to marriage or mistake as to purpose (such as thinking the consent is for the purpose of medical examination)
  • person is unable to understand what they are consenting to due to their age or intellectual capacity.

It can also be established that a person did not consent where:

  • the person is substantially intoxicated by alcohol or any drug, or
  • agreed to sexual intercourse because of intimidatory or coercive conduct which does not have to involve a threat of force, or
  • the person submits due to the person being in a position of trust. (Section 61HA(6)).

The defence of consent is not available when the victim is a child below 16 years of age or a vulnerable person. Under the law, these persons cannot be said to have consented because of their age and vulnerability.

Proving consent

To prove a charge of sexual assault with an adult victim, the prosecution must prove that the victim did not consent, and the accused person was aware that the victim did not consent or was reckless as to whether the victim consented or not. This is ascertained on a case to case basis.

‘Recklessness’ in this context means that the person ‘has no reasonable grounds for believing that the other person consents’ (Section 61HA(3)).

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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