Consent in Sex Matters

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Dee GiannopoulosThe article Consent in Sex Matters is written by Dee Giannopoulos, Partner, Doogue + George Defence Lawyers.

Dee is a solicitor advocate based at our Melbourne office. She is an expert in pre-charge strategies as well as in matters involving significant amount of infringements.

Dee's excellence in the field has led to many of her clients being interviewed but not charged. She is recognised as a Rising Star Criminal Defence Lawyer in the Doyle’s Guide 2020 and is a member of the Young Lawyers Section of the Law Institute of Victoria.

Sexual ConsentWhat is consent in a Sexual Assault case? The definition is surprisingly complex.

If a person charged with sexual assault of an adult held a reasonable belief that the person who alleged they had been sexually assaulted, had consented to being sexually touched, the accused is not guilty of that criminal offence.

It is the Court, or a jury, which will assess if such a belief was reasonable after considering all the circumstances, including evidence provided to by both prosecution and defence.

No aspects of stereotyping, or preconceptions should form part of this assessment by the Court. This includes cultural or religious typecasting.

Essentially, the Court will turn its mind to what would have been expected by the community, in relation to the actions of the accused person, in the circumstances.

If convicted by a jury, a Magistrate or a Judge presiding without a jury, the accused person faces a sentence of imprisonment up to a maximum of 10 years.

The offence of Sexual Assault replaced the previous offence of Indecent Assault in the Crimes Act 1958 and is different to the offence of Rape which is an offence that involves penetration. Rape carries a sentence of imprisonment up to a maximum of 25 years. It is an offence which has a standard sentence of 10 years.

There is an alternative offence of Sexual Assault by Compelling Sexual Touching which involves the accused person compelling the alleged victim to sexually touch the accused person, or someone else and, indeed, even an animal. A person accused of this offence faces a sentence of imprisonment up to a maximum of 10 years.

This offence falls under section 41 of the Crimes Act 1958.

There is what is known as a ‘legislative exception’ to sexual touching and even sexual penetration, which doesn’t constitute a criminal offence. It involves occasions where such events occurred in relation to medical, veterinary, agricultural, or scientific purposes.

This exception falls under section 48A of the Crimes Act 1958.

Reasonableness With Regard to Consent

There has been significant analysis by all Courts in Australia, particularly the High Court, about the meaning of reasonableness and reasonable doubt.

One would have thought that by now it would be clear precisely what it means, in determining a person’s state of mind on one hand and the facts of evidence on the other. By all accounts – it isn’t.

It appears from the analysis that it is a process that is difficult to explain let alone define.

For this reason, reasonable minds may and do differ on what is appropriate in this regard.

It is, therefore, no different to the difficulty posed by the need to consider the state of mind of an accused person regarding the question of consent in a Sexual Assault contested hearing or trial.

State of Mind of an Accused

The state of mind of an accused person, regarding consent, is a significant consideration by the fact finder and the prosecution has the onus of proving that the alleged victim did not, of their own free will, consent to the touching by the accused.

In order for the Court to find an accused person guilty of the offence of Sexual Assault, the prosecution has to prove four main elements:

  1. The accused, in a conscious act, of his or her own free will and in a deliberate way, touched the alleged victim in the manner complained of.
  2. Such involvement, with the alleged victim, was of a sexual nature.
  3. It must be established that the alleged victim did not voluntarily agree that the accused person could touch them in the manner described.
  4. It must be proved that the accused, at the time of the offence, did not reasonably believe that the alleged victim had consented or was consenting. This includes that the accused gave no thought as to whether or not consent was given; and if the accused believed consent had been given, then that this belief was unreasonable.

If you have read to the end of this article and you need some advice relating to charges you are facing then please call our office on (03) 9670 5111.

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