All you should know about consent in Sexual Assault

Sexual assault is considered as a serious offence in Australia. Consent is the crucial concept and most complex in a sexual assault. It is the deciding factor, whether the sexual intercourse was legal or illegal.

Sec 61HA (2) of Crimes Act 1900 (NSW), sets out the definition of consent as, “A person “consents” to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.” The law says that a person is unable to give consent when:

• asleep or unconscious
• significantly intoxicated or affected by drugs
• unable to understand what they are consenting to due to their age or intellectual capacity
• intimidated, coerced or threatened
• unlawfully detained or held against their will
• they submit due to the person being in a position of trust.

For the purpose of this article, we are focusing on the situations where the person is asleep, unconscious, significantly intoxicated by alcohol or affected by drugs.

NSW has a different approach in relation to consent. Until recently, the defence of honest belief that the complainant consented was available in NSW. The defence available was based on, whether in the situation the accused: (a) believed that the complainant was consenting; and (b) if so, was the belief reasonable.  In 2007, substantial changes were made and enacted in relation to consent.

Now, according to sec 61HA (4) (a) of the Crimes Act 1900, the consent is vitiated in a sexual intercourse if the person is asleep or unconscious and under sec 61HA (6) (a) the person is said to have not consented, if intoxicated by alcohol or any kind of drugs. It is believed that the person does not have the opportunity to consent to the sexual intercourse due to altered state of mind. The law also may take into account the reasonableness of the mental state of mind of the person to decide the existence of consent.

For the accused to bring evidence of being intoxicated, where it is self-induced at the time of the sexual intercourse, cannot be not taken into account under 61I of the Act. The issue has been discussed in various cases and judges have ruled that the accused’s self-induced intoxication could not be taken into account by the jury for the alleged offences of indecent assault and sexual intercourse without consent.

It is recommended that an accused should not be found of sexual offence without consent ‘unless the prosecution proves’ that the accused:

• knew that the victim was not consenting;
• was ‘reckless to the absence of consent’; or
• ‘failed to give any thought to the question of consent’.

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