The absence of consent and awareness of non consent by the accused are elements of many sexual offences. The prosecution must prove beyond reasonable doubt that the activity alleged occurred without consent and that the accused was aware of the absence of consent.
The accused may raise a defence that the alleged sexual activity was consensual.
Consent and Awareness of Non-Consent
Consent will generally be relevant to the following offences, as it is an element of each offence listed that there be an absence of consent:
- Rape – s 38(2)(a)
- Rape (failure to withdraw) – s 38(2)(b)
- Compelled Rape – s 38 (3)(a)
- Compelled Rape (failure to withdraw) – s 38 (3)(b)
- Compelling Sexual Penetration – s 38A
- Indecent Assault – s 39
- Assault with intent to rape – s 40
Consent may also be relevant to the following offences, as it is an element of the offence that there be an absence of consent in the particular circumstances identified in the offence provision. Although it should be borne in mind that a child can not legally consent to sexual penetration. They may in fact do so but that is a different issue:
- Incest – s 44
- Sexual penetration of a Child under the Age of 16 – s 45
- Indecent act with Child under the age of 16 – s 47
- Sexual penetration of a 16 or 17 year old – s 48
- Indecent act with 16 or 17 year old – s 49
- Sexual penetration of a person with a cognitive impairment – s 51(1), 52(1)
- Indecent act with a person with a cognitive impairment – s 51(2), 52(2)
Directions on Consent – Section 37AAA
Where consent is in issue, the judge must direct the jury in respect of the matters set out in s 37AAA which are:
- The meaning of consent set out in section 36
- That the law deems a circumstance specified in section 36 to be a circumstance in which the complainant did not consent
- That if the jury is satisfied beyond reasonable doubt that a circumstance specified in section 36 exists in relation to the complainant, the jury must find that the complainant was not consenting
- That the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person’s free agreement
- That the jury is not to regard a person as having freely agreed to a sexual act just because:
— s/he did not protest or physically resist; or
— s/he did not sustain physical injury; or
— on that or an earlier occasion, s/he freely agreed to engage in another sexual act (irrespective of the fact that it was the same type or not) with that person, or a sexual act with another person.
Directions on the Accused’s Awareness – Section 37AA
In appropriate circumstances, the judge must also direct the jury on matters set out in s 37AA:
In considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider –
- any evidence of that belief; and
- whether that belief was reasonable in all the relevant circumstances having regard to
— in the case of a proceeding in which the jury finds that a circumstance specified in section 36 exists in relation to the complainant, whether the accused was aware that the circumstance existed in relation to the complainant; and
— whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and
— any other relevant matters.
Awareness and Belief
The jury must consider the reasonableness of the accused’s belief in consent. This direction does not make it an element of any offence that the accused’s belief in consent be reasonable. Instead, the reasonableness of belief is relevant only to the jury’s assessment of whether or not the belief was in fact held. If there is no evidence on which the jury could properly conclude that the accused believed that the complainant consented, there is no need to direct the jury about the issue.