Definition of ‘Consent’ in Sexual Assault Cases


Section 61 HA of the Crimes Act contains a definition of consent that applies to three offences. It applies to sexual assaults, it applies to aggravated sexual assaults, and to aggravated sexual assault in company. The section says that consent is given if a person freely and voluntarily agrees to sexual intercourse. It says that a person has knowledge that the other person does not consent if they actually know the other person doesn’t consent, or are reckless about whether or not the other person consent, or have no reasonable grounds for believing that the other person can consents. In making that decision all circumstances of the case must be considered, including any steps taken to ascertain whether the other person consents; for example asking questions, preliminary actions, body language, other things that may be considered include contact leading up to the acts, the context of where it occurred, communications between the parties words, body language, actions, the relationship between the parties. However any self induced intoxication cannot be taken into account as a relevant factor. The section states that a person does not consent if they are under the age of consent, which is 16 at most, but not in all situations, or they have a cognitive incapacity, or they could not have consented because they were unconscious or asleep, or they were under threats of force or terror, or unlawfully detained, or they were mistaken about the identity of the other person, or falsely believe they were married to the other person, or that the acts was undertaken for a medical or hygienic purpose. Factors that come into play when considering whether consent was negated include any evidence of any intoxication by alcohol or drugs, any evidence of intimidation, coercion or threats, even if it doesn’t amount to a threat of force, and any abuse of a position of trust. The fact that no physical resistance was offered does not necessarily mean consent was given. Sexual assault cases are treated very seriously by the courts, so it’s vital to be accurately advised about the question of consent. Criminal defence lawyers who have specialist experience in defending and winning sexual assault cases will be able to review your case, and if it appears that consent was given they can push the prosecution to withdraw the case on that basis if the case goes ahead they can fight to win the case in court.

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