Consent


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Consent is a commonly used defence, particularly in cases of assault, sexual assault or larceny (stealing).

1. Consent in sexual offences

For sexual offences, the prosecution will have to prove that the other person did not give permission for you to touch them or have sexual intercourse with them.

Whether or not consent was given will be determined based on your state of mind at the time of the offence – this means that the judge or jury will step into your shoes at the time of the offence to determine whether you honestly believed that consent had been given.

You may still be found guilty if you were reckless as to consent – for example, if you knew that there was a possibility that the complainant did not give consent but you continued anyway, or if you did not care about whether consent was given or not.

NOTE: You won’t be able to raise the defence of consent for sexual offences involving children (persons under the age of 16), or where the complainant was intoxicated or asleep and they could not give consent.

2. Consent in assault cases

You cannot be found guilty of assault where the other person has given permission for you to assault them – for example in sport, surgery or medical treatment.

In sport, players can only consent to assault and injury within the rules of the sport – for example, tackling another player in a footy game will not be an assault. However, the use of excessive and unnecessary violence will still be an assault.

In cases of surgery or medical treatment, the surgery or medical treatment can only be within the limits of what the patient has consented to. If you go beyond that – for example, performing additional surgery that the patient has not consented to – you may be found guilty of assault.

3. Consent in cases of larceny

You cannot be found guilty of larceny where the owner of the property gave their permission for you to take the property.

Even when the owner does not explicitly say that they do not consent to the items being taken (for example, where you simply find something and decide to keep it), you may be found guilty of larceny.

If you raise the defence of consent, the prosecution will then have to prove beyond a reasonable doubt that consent was not actually given. Consent will not be able to be used as a defence in murder or manslaughter cases.

If your defence is accepted in court, you will be found ‘not guilty.’