What Does Criminal Law Say on Consent?


Sexual offences in NSW come with harsh penalties and it is vital that defendants seek representation from criminal defence lawyers who are experienced in sexual assault cases.

Depending on the severity of the offence, a person convicted of sexual assault faces the possibility of a lengthy prison sentence, with a set non-parole period which means that they will have to serve a certain minimum amount of time in prison before they can be considered for release on parole.

They will also be required to live under certain restrictions when they are released into the community after serving their sentence.

To be convicted of a sex offence, the prosecution needs to show that the alleged victim (‘the complainant’) didn’t consent to the act and that the defendant was aware of their lack of consent.

Consent can be difficult to prove either way, as many alleged sexual offences are committed without witnesses.

It often turns out to be one person’s word against another in adult sexual assault cases where there is no independent evidence of the incident eg where there is no CCTV footage or eye-witnesses.

What is consent?

According to the current criminal law on consent, consent is when a person “freely and voluntarily agrees to sexual intercourse.”

As most serious sexual offences are indictable, whether or not consent was given will be decided by the judge or jury after hearing the evidence in the case, eg hearing from the complainant and any other witnesses in the case, including the defendant.

There are a number of common myths about what constitutes consent, and this can affect the way that juries look at defendants in sexual assault cases.

The Law Reform Commission recommends that judges provide jury guidelines in sexual assault cases to ensure that misconceptions are addressed, and the jury is aware what consent actually is and isn’t.

For a defendant in a sexual assault case to be found guilty, the prosecution must prove beyond reasonable doubt that there was a ‘lack of consent’.

This means that there was no coercion, either physical or emotional, and the alleged victim wasn’t misled into having sexual intercourse by a belief of mistaken identity.

How can a complainant prove there was no consent?

There are a number of circumstances where it is assumed that the complainant couldn’t have reasonably given consent.

These include:
Where the complainant was too young to understand what they were giving consent to, or they were unable to understand due to their intellectual capacity.
Where there was intimidation or coercion with or without the threat of immediate physical violence.
Where the complainant was intoxicated or incapacitated.
Where the complainant was asleep or unconscious.
Where the defendant was in a position of authority or trust and the complainant submitted.
Where the complainant was held against their will or unlawfully detained.
If any of the above circumstances are proved beyond reasonable doubt, then it will be found that the complainant did not consent.

Even if the complainant did agree to the sexual intercourse, if it can be demonstrated that they suffer from a cognitive or intellectual impairment, were a child at the time of the alleged offence, or the defendant was in a position of authority, the defendant can still be convicted of a sexual offence.

The court can also decide that consent wasn’t given in circumstances where it can be demonstrated that the defendant was reckless as to whether or not the complainant consented, or if they had no reasonable grounds to assume they had consented.

If the defendant knew that the complainant was under a mistaken assumption about their identity, marital status or they had been otherwise deceived into consenting to sexual intercourse, this can also be taken as evidence that consent wasn’t given.

If the defendant can show that they took reasonable steps to find out whether the complainant consented, this can help to strengthen their defence.

Anybody who is facing an allegation of sexual misconduct should seek legal advice from a criminal lawyer with expertise and experience in sexual offences as soon as possible.

The repercussions of having a conviction for a sexual offence can be extreme, and can include imprisonment and being listed on the national sex offenders register.


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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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