What is the Meaning of Consent in Sexual Assault Cases?

by Sonia Hickey & Ugur Nedim

A former NSW Police officer has been charged with sexually assaulting a colleague while he was in uniform.

A District Court jury has heard that 44-year old Kristian Dieter Glaser was either on duty or had just finished work when he attended a colleague’s apartment in 2013, and sexually assaulted her.

In evidence before the court, the pair exchanged pleasantries but, as the woman was about to give Glaser a kiss goodnight, he took her by the wrists and forced her to her bedroom, removed her clothes and had sexual intercourse with her.

The woman says that she repeatedly and emphatically said ‘no’ to Glaser during the incident, making it clear she did not consent to the intercourse.

According to the Crown prosecutor, “It would have become very clear… that the complainant was providing her consent to his sexual advances”.

Mr Glaser does not deny having sexual intercourse but refutes that she said “no” or that the intercourse was without her consent.

The trial continues.

What is the meaning of ‘consent’ in sexual assault cases?

Under section 61HE of the Crimes Act 1900 (NSW), consent is considered to have been given in the context of sexual assault cases where a person “freely and voluntarily agrees to the sexual intercourse.”

The first requirement to establish that the complainant did not consent.

The second is that the defendant knew the complainant did not consent.

This second requirement is established where the prosecution proves that the defendant:

  • knew the complainant was not consenting, or
  • was reckless as to whether the complainant was consenting, or
  • had no reasonable grounds to believe the complainant was consenting.
  • In making such a finding, the court must have regard to all of the circumstances of the case including any steps taken by the defendant to ascertain whether the complainant was consenting, but it must not consider any self-induced intoxication by the defendant.

In addition to this, the current law provides that a person cannot consent to sexual intercourse where he or she:

  • does not have the capacity to consent due to their age or cognitive incapacity, or
  • does not have the opportunity to consent as they are unconscious or asleep, or
  • consents because of threats of force or terror, or
  • is unlawfully detained.

Furthermore, the law states that a person does not consent if under a mistaken belief that:

  • he or she is married to the defendant, or
  • that the sexual intercourse is for health or hygienic purposes.

The law also says it may be established that a complainant does not consent to sexual intercourse include where he or she:

  • was substantially affected by drugs or alcohol,
  • was subjected to intimidatory or coercive conduct, or another threat, that did not involve force,
  • was taken advantage of through an abuse of authority or trust,
  • The law also makes it explicitly clear that a complainant who does not offer physical resistance is not necessarily consenting.

Review underway

Reforms of these consent laws were called for after the case of Saxon Mullins made media headlines in 2018. Her case involved two high-profile trials over a period of five years after she accused Luke Lazarus of sexually assaulting her in an isolated alleyway behind a Kings Cross nightclub in 2013.

As a result of her battle, the NSW government mooted changes it wants made to the existing law to make it easier to convict those accused of sexual assault, ensuring that people must explicitly obtain permission to have sex, and that if there was not an ‘enthusiastic ‘yes’ response, then it must be assumed to be ‘no.’

Sexual intercourse without consent, which also called ‘sexual assault’ and was previously known as ‘rape’, is an offence under section 61I of the Crimes Act 1900 (NSW) which carries a maximum of 14 years imprisonment.

Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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