Consent is defined by section 61HA of the Crimes Act 1900 (NSW) as when: a person “freely and voluntary agrees to sexual intercourse”.
There are some limits to consent.
a) Firstly, consent can be negated if the person giving the consent lacks the capacity to do so. This can be due to factors such as age or intoxication or mental health.
b) Consent can be negated if the person has no opportunity to physically consent as they are asleep or unconscious.
c) If a person consents to sexual behaviour as a result of mistaken belief of the person’s identity, or that the acts were done for medical purposes.
d) Any consent given in response to threats of force or terror, or unlawful detainment is negated.
It is important to note that failure to actively resist or actively say ‘no’ does not amount to consent. Furthermore, if an act is done with recklessness as to consent this can also amount to an offence.
In order to prove that there was consent, it can sometimes be useful to examine the steps taken by the accused to ascertain that there was in fact consent to the sexual intercourse.
There are also some offences in which consent cannot be used as a defence. These include:
- s61M(2): aggravated indecent assault of child under 16;
- s61N(1): act of indecency with a child under 16;
- s61O(1), (2), (2A): aggravated act of indecency, filmed act of indecency, child under 16 years old;
- s66A(1), (2): sexual intercourse with a child under 10;
- s66B: assault or attempt assault with intent to have sexual intercourse with a child under 10;
- s66C: sexual intercourse with a child between the ages of 10 and 16;
- s66D: assault or attempt assault with intent to have sexual intercourse with a child between 10 and 16;
- s66EA: persistent sexual abuse;
- s66EB: procuring/grooming child for unlawful sexual activity;
- s73: sexual intercourse with child between 16-18 years and under special care;
- s61L: indecent assault where child is under 16;
- s61M(1): aggravated indecent assault where child is under 16.
How can Prime Lawyers help you?
If you have found yourself in a situation where consent is contested, the criminal lawyers at Prime Lawyers are able to assist you in determining the legality of your situation and can advise you as to your position under the law.