The definition of consent contained in section 61HE applies to offences that are alleged to have occurred before 1 June 2022.
Definitions of consent contained in sections 61HH, 61HI, 61HJ and 61HK apply to conduct that is alleged to have occurred from 1 June 2022.
Section 61HE of the Crimes Act 1900 contains the definition of ‘consent’ in sexual assault cases prior to 1 June 2022.
Subsection 61HE(1) makes clear that the definition applies to:
- Sexual Assault under section 61i
- Aggravated Sexual Assault under section 61J
- Aggravated Sexual Assault in Company under section 61JA
- Sexual Touching under section 61KC
- Aggravated Sexual Touching under section 61KD
- Sexual Act under section 61KE, and
- Aggravated Sexual Act under section 61KF
Subsection 61HE(2) states that, “a person consents to sexual activity if the person freely and voluntarily agrees to” it.
Subsection 61HE(3) makes clear that consent does not exist where:
- You knew the other person (the complainant) did not consent,
- You were reckless as to whether the complainant consented or not, or
- You has no reasonable grounds to believe that the complainant consented.
Subsection 61HE(4) states that, when determining whether consent exists, the court must look at all relevant circumstances including any steps you took to ascertain whether consent existed, but it cannot consider your self-induced intoxication.
Subsection 61HE(5) makes clear that consent does not exist where the complainant:
- Was underage, which means under 16, or under 18 where he or she was under your ‘special care’,
- Could not consent due to cognitive incapacity,
- Was unconscious or asleep,
- Was subjected to threats of force or terror, or
- Was unlawfully detained.
Subsection 61HE(6) states that the complainant does not consent where you fraudulently induced him or her into the act, or he or she was under a mistaken belief:
- As to your identity,
- That he or she was married to you, or
- That the act was for health or hygienic purposes,
Other circumstances which amount to fraudulent inducement.
Subsection 61HE(8) states that the grounds upon which it may be established that the complainant did not consent include that he or she:
- Was substantially intoxicated by alcohol or other drugs,
- Consented due to your intimidation, coercion or threats, or
- Consented due to your abuse of a position of authority.
The complainant’s failure to provide physical resistance is not, by itself, to be regarded as consent.
If you are going to court for the offence of Sexual Assault, call Sydney Criminal Lawyers 24/7 on (02) 9261 8881 to arrange a free first conference with an experienced defence lawyer who will advise you of your options and the best way forward, and fight to secure the optimal outcome.
Read on for more information.
Section 61HE of the Crimes Act 1900 contains the definition of consent in sexual assault cases, and reads as follows:
61HE Consent in Relation to Sexual Offences
(1) Offences to which section applies This section applies for the purposes of the offences, or attempts to commit the offences, under sections 61I, 61J, 61JA, 61KC, 61KD, 61KE and 61KF.
(2) Meaning of “consent” A person
“consents” to a sexual activity if the person freely and voluntarily agrees to the sexual activity.
(3) Knowledge about consent A person who without the consent of the other person (the “alleged victim” ) engages in a sexual activity with or towards the alleged victim, incites the alleged victim to engage in a sexual activity or incites a third person to engage in a sexual activity with or towards the alleged victim, knows that the alleged victim does not consent to the sexual activity if:
(a) the person knows that the alleged victim does not consent to the sexual activity, or
(b) the person is reckless as to whether the alleged victim consents to the sexual activity, or
(c) the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity.
(4) For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:
(a) including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity, but
(b) not including any self-induced intoxication of the person.
(5) Negation of consent A person does not consent to a sexual activity:
(a) if the person does not have the capacity to consent to the sexual activity, including because of age or cognitive incapacity, or
(b) if the person does not have the opportunity to consent to the sexual activity because the person is unconscious or asleep, or
(c) if the person consents to the sexual activity because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or
(d) if the person consents to the sexual activity because the person is unlawfully detained.
(6) A person who consents to a sexual activity with or from another person under any of the following mistaken beliefs does not consent to the sexual activity:
(a) a mistaken belief as to the identity of the other person,
(b) a mistaken belief that the other person is married to the person,
(c) a mistaken belief that the sexual activity is for health or hygienic purposes,
(d) any other mistaken belief about the nature of the activity induced by fraudulent means.
(7) For the purposes of subsection (3), the other person knows that the person does not consent to the sexual activity if the other person knows the person consents to the sexual activity under such a mistaken belief.
(8) The grounds on which it may be established that a person does not consent to a sexual activity include:
(a) if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug, or
(b) if the person consents to the sexual activity because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or
(c) if the person consents to the sexual activity because of the abuse of a position of authority or trust.
(9) A person who does not offer actual physical resistance to a sexual activity is not, by reason only of that fact, to be regarded as consenting to the sexual activity.
(10) This section does not limit the grounds on which it may be established that a person does not consent to a sexual activity.
(11) In this section:
“sexual activity” means sexual intercourse, sexual touching or a sexual act.
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