Criminal Law

The Concept of Consent

As noted on our “sexual assault” page a person "consents" to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. 

Often an experienced criminal lawyer is faced with the difficult task of advising a client as to whether or not there is an issue as to consent.

The law states that a person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: 

(a) the person knows that the other person does not consent to the sexual intercourse, or

(b) the person is reckless as to whether the other person consents to the sexual intercourse, or

(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

For the purpose of making any such finding, a Magistrate, Judge or Jury of fact must have regard to all the circumstances of the case: 

(a) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but

(b) not including any self-induced intoxication of the person.

From the other point of view, the law states that a person does not consent to sexual intercourse:

(a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or

(b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or

(c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or

(d) if the person consents to the sexual intercourse because the person is unlawfully detained.

Further, a person who consents to sexual intercourse with another person:

(a) under a mistaken belief as to the identity of the other person, or

(b) under a mistaken belief that the other person is married to the person, or

(c) under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means),

does not consent to the sexual intercourse. Even though there is a mistaken belief, the other person must know that such a mistaken belief exists. 

The grounds on which it may be established that a person does not consent to sexual intercourse include:

(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or

(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or

(c) if the person has sexual intercourse because of the abuse of a position of authority or trust.

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

The law also states that the above scenarios do not limit the grounds on which it may be established that a person does not consent to sexual intercourse. 

There are also some offences where consent cannot be used as a defence. Some of these include:

- indecent assault where child is under 16
- aggravated indecent assault where child under 16;
- act of indecency where child is under 16;
- aggravated act of indecency where child is under 16;
- sexual intercourse where child is under 16;
- sexual intercourse with child between 16-18 years and under special care.

If you have been charged with a sexual offence and require assistance, our experts at Prime Lawyers - Criminal Law Division can help.  Contact us to make an appointment with a criminal lawyer at your nearest Prime Lawyers office.
We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.    

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