Meaning of Consent
The Crimes Act 1958 (Vic) defines the meaning of “consent” as free agreement and describes circumstances where a person does not freely agree to an act. The Crimes Act 1958 (Vic) section 36(2) lists some circumstances in which a person does not consent. This section explicitly states that it is a non-exhaustive list.
Consent can be given by words, non-verbal conduct, a course of non-verbal conduct, or any combination thereof; consent obtained by way of force, threats or intimidation does not constitute free agreement; and to show the absence of consent, the victim is not required to have resisted to the point of risking harm to themselves or suffering harm.
The defence of consent can be raised in relation to a range of criminal offences against the person, for example, theft (where it can be argued that they had consent from the owner to take/use the property), trespass (where it can be that they had permission to enter the building), criminal damage (consent to assume the rights of the owner) and sport (where consent is implied regarding contact sports). Most commonly it is used as a defence against sexual offences.
Definition in relation to Sexual Offences
The meaning of consent in relation to sexual offending is defined at Section 36 of the Crimes Act 1958 (Vic) defines “consent” as a free agreement.
Circumstances in which a person does not consent to an act include, but are not limited to, the following—
(a) the person submits to the act because of force or the fear of force, whether to that person or someone else;
(b) the person submits to the act because of the fear of harm of any type, whether to that person or someone else or an animal;
(c) the person submits to the act because the person is unlawfully detained;
(d) the person is asleep or unconscious;
(e) the person is so affected by alcohol or another drug as to be incapable of consenting to the act;
(f) the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act;
This circumstance may apply where a person gave consent when not so affected by alcohol or another drug as to be incapable of consenting.
(g) the person is incapable of understanding the sexual nature of the act;
(h) the person is mistaken about the sexual nature of the act;
(i) the person is mistaken about the identity of any other person involved in the act;
(j) the person mistakenly believes that the act is for medical or hygienic purposes;
(k) if the act involves an animal, the person mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes;
(l) the person does not say or do anything to indicate consent to the act;
(m) having given consent to the act, the person later withdraws consent to the act taking place or continuing.
Consent as a Defence in relation to Sexual Offences
Consent can be a defence and the absence of consent can be an element an offence to be proven. For an accused person to be guilty of certain sexual offences, the prosecution must prove beyond a reasonable doubt that there was an absence of consent.
Consent will be relevant to the following offences, as it is an element of each offence that there be an absence of consent:
- Rape (s 38)
- Rape by compelling sexual penetration (s 39)
- Sexual assault (s 40)
- Sexual assault by compelling sexual touching (s 41)
- Assault with intent to commit a sexual offence (s 42)
In assessing evidence as to the accused’s state of mind, consideration is given as to whether the accused took any steps to determine whether the complainant was consenting or might not be consenting, and what steps were taken to clarify consent. Such assessments are based on the evidence of the particular case. If a belief is based on a general assumption, then, it is not a reasonable belief. In considering whether a belief in consent is reasonable or unreasonable, triers of fact must look at what the community would reasonably expect of the accused in the circumstances.
The prosecution must prove that the accused did not reasonable believe the complainant consented to the act, consideration will be given to any personal attributes or characteristics of the accused and, the circumstances of the offence see ISJ v R (2012). The level of intoxication of the accused will now not be taken into account when assessing whether there was a reasonable belief in consent. The law states that the accused’s belief in the complainant’s consent must have been reasonable to a person who was not intoxicated at the time of offending, see section 36B of the Crimes Act 1958 effect of intoxication on reasonable belief.
Consent as a Defence to Other Offences
A person who consents to the application of force has no right to complain about pain or injury suffered if it is within the bounds of what was consented to. In terms of assault, the term itself involves the notion of a lack of consent. ‘An assault with consent is not an assault at all’ (R v Schloss (1897)). This statement is subject to a qualification; namely, the law does not allow people to consent to the infliction of actual or grievous bodily harm. Though there are, some notable exceptions to this qualification: such as sporting events, surgical procedures, and lawful discipline. This concept of an offence of assault not having been an assault at all if the complainant consented, can extend to any criminal offence if the charge relies on the absence of a lawful excuse.
In Pallante v Stadiums Pty Ltd , regarding a boxing tournament, it was held that a person cannot generally consent to the infliction of actual bodily harm but that in some sporting events there is an implied consent that injury may occur. The law recognises that in lawful sporting events that are not inherently dangerous to life or limb, infliction of actual bodily harm is to be expected under the rules. This is satisfactory provided the participants’ intention is to not inflict very serious injury, although sports like MMA or mixed martial arts, might challenge this proposition.
Therefore, a person can lawfully consent to the infliction of actual bodily harm that is an expected and normal consequence of an activity; such as tattooing, male circumcision, body piercing, and branding, see R v Wilson . The presence of drugs and alcohol during the activities in question makes them inherently dangerous to life or limb, negating consent.