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Defence of Consent

Consent is defined in section 36 of the Crimes Act 1958 as meaning ‘free agreement’ and describes seven particular circumstances non-exclusively where a person ‘does not freely agree to an act’.

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 alleged activity 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.

Submission in circumstances of ‘force or fear of force’ or ‘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 judgment 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.

Sexual offences where consent is relevant

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

Consent may also 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 – s 44
  • Sexual penetration of a Child under the Age of 16 – s 45
  • Indecent act with Child under the age of 16 – s 47
  • Sexual penetration of a 16 or 17 year old – s 48
  • Indecent act with 16 or 17 year old – s 49
  • Sexual penetration of a person with a cognitive impairment – s 51(1), 52(1)
  • Indecent act with a person with a cognitive impairment – s 51(2), 52(2)

Directions on consent – section 37AAA
Where consent is in issue, the judge must direct the jury in respect of the matters set out in s 37AAA which 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:
    -s/he did not protest or physically resist; or
    -s/he did not sustain physical injury; or
    -on that or an earlier occasion, s/he freely agreed to engage in another sexual act (irrespective of the fact that it was the same type or not) with that person, or a sexual act with another person.

Directions on the accused’s awareness – section 37AA
In appropriate circumstances, the judge must also direct the jury on matters set out in s 37AA:

In 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 the 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

Awareness and 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.