Consent is relevant to a number of sexual offences, the most common of them being rape (s. 38(2)(a) Crimes Act 1958). It is also relevant to a charge of indecent assault (s. 39 Crimes Act 1958).
Section 36 of the Crimes Act 1958 defines ‘consent’ as a ‘free agreement’.
Rape is defined in the Crimes Act as follows:
‘Intentionally sexually penetrating another person without their consent, while being aware that the person is not or might not be consenting, or while not giving any thought to whether the person is not or might not be consenting.’
Therefore the 4 elements of the charge that the Prosecution must prove beyond reasonable doubt are:
- Without consent
- Without being aware that the person is not or might not be consenting
In relation to a charge of Rape, the issue of consent is relevant to the third and fourth elements of the offence.
The legislation goes further to outline situations that do not involve consent.
Meaning of consent s. 36
For the purposes of Subdivisions (8A) to (8D) “consent” means free agreement. Circumstances in which a person does not freely agree to an act include the following—
(a) the person submits because of force or the fear of force to that person or someone else;
(b) the person submits because of the fear of harm of any type to that person or someone else;
(c) the person submits because she or he is unlawfully detained;
(d) the person is asleep, unconscious, or so affected by alcohol or another drug as to be incapable of freely agreeing;
(e) the person is incapable of understanding the sexual nature of the act;
(f) the person is mistaken about the sexual nature of the act or the identity of the person;
(g) the person mistakenly believes that the act is for medical or hygienic purposes.
Section 37AA of the Crimes Act 1958 sets out the factors that the jury must consider in determining whether or not there was consent;
The jury must consider—
(a) any evidence of that belief; and
(b) whether that belief was reasonable in all the relevant circumstances having regard to—
(i) 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
(ii) 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
(iii) any other relevant matters.
Consent can also be raised in relation to other criminal offences, for example theft (where the Accused argues that they had permission from the owner to take/use the property), trespass (where the Accused argues that they had permission to enter the building) or criminal damage.