There are two definitions of ‘consent’ in ‘sexual cases’:
- A ‘statutory definition’ – which is a definition contained within a piece of legislation.
- a ‘common law definition’ – which has evolved over many years through case-law.
The statutory definition is set-out in s 61HA of the Crimes Act 1900 and applies to three offences:
- Sexual assault under s 61I
- Aggravated sexual assault under s 61J, and
- Aggravated sexual assault in company under s 61 JA.
The common law definition applies to all other ‘sexual offences’ including indecent assault.
In either case, consent (or lack of consent) can be communicated verbally or through the actions of the person who has made the complaint (the ‘complainant’).
Further, whether or not you believed that consent was given will always be assessed from your perspective at the time of the offence based on all the facts and circumstances – the court will not consider what you should have thought or done.
If you honestly and reasonably believed that the complainant gave consent, the charges against you may be dismissed.
Under section 61HA of the Crimes Act, consent is given when a person ‘freely and voluntarily agrees to the sexual intercourse.’
The statutory definition explicitly states a range of situations where consent will not be given, for example, where the other person:
- does not have the capacity to give consent due to their age or mental impairment;
- is unconscious or asleep;
- gives consent under a threat of force or terror; and
- is under a mistaken belief as to the identity of the alleged offender, or that the offender is their spouse, or that the intercourse is for medical or hygienic reasons.
In deciding whether consent was given, the court can look at:
- whether the complainant was severely intoxicated by alcohol or drugs;
- whether there was any intimidation, coercion or threats – even if they don’t amount to ‘threats of force’; and
- whether the alleged offender abused a position of authority.
- Importantly, the fact that the complainant did not physically resist does not necessarily mean that consent was given.
Those who are under the age of 16, or 18 where there is a relationship of ‘special care’, are unable to provide consent.
In contrast, the common law definition of consent is much more general.
It consists of two ingredients:
1. The complainant did not provide consent;
2. The accused acted despite knowing that consent was not given, or acting recklessly as to whether consent was given or not.
‘Acting recklessly as to whether consent was given or not’ includes situations where:
- it’s demonstrated that you did not care about whether consent was given or not; or
- where it’s shown that you knew that there was a possibility that consent was not given, but you acted anyway.
Both definitions appear to be very similar in terms of their wording and structure.
Consent, or lack of consent can be communicated verbally or through actions in either case.
So, what’s the difference?
The biggest difference is that the statutory definition creates a broader range of cases where consent will not be given – it specifically states that consent will not be given where:
- the victim is unconscious or asleep,
- where they are coerced by threats or force,
- where the victim is under a mistaken belief as to the identity of the offender and so on.
Once again, this definition applies only to three offences: sexual assault (s 61 I); aggravated sexual assault (s 61J) and aggravated sexual assault in company (s 61 JA).
The common law definition is much less restrictive and gives a general definition which does not specify cases where consent will not be given.
Again, this definition applies to sexual offences other than those described above, such as indecent assault and aggravated indecent assault.