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What is ‘Consent’ in Sexual Assault Cases?

What is ‘Consent’ in Sexual Assault Cases?

Section 61HE of the Crimes Act 1900 contains the definition of ‘consent’ in sexual assault cases.

Subsection 61HE(1) makes clear that the definition applies to:

  1. Sexual Assault under section 61i
  2. Aggravated Sexual Assault under section 61J
  3. Aggravated Sexual Assault in Company under section 61JA
  4. Sexual Touching under section 61KC
  5. Aggravated Sexual Touching under section 61KD
  6. Sexual Act under section 61KE, and
  7. 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) states that consent does not exist where:

  1. You knew the other person (the complainant) did not consent,
  2. You were reckless as to whether the complainant consented or not, or
  3. 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:

  1. Was underage, which means under 16, or under 18 where he or she was under your ‘special care’
  2. Could not consent due to cognitive incapacity
  3. Was unconscious or asleep
  4. Was subjected to threats of force or terror, or
  5. 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:

  1. As to your identity
  2. That he or she was married to you, or
  3. That the act was for health or hygienic purposes
  4. 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:

  1. Was substantially intoxicated by alcohol or other drugs
  2. Consented due to your intimidation, coercion or threats, or
  3. 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.

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