Consent Flashcards
“Consent”
Definition: A person’s conscious and voluntary agreement to something desired or proposed by another.
Relevant C/L:
R v Cook
R v Cox
R v Gutuama
Reluctant Consent
The Court held that a true consent may be given reluctantly or hesitantly and may be regretted afterwards, but if the consent is given even in such a manner, provided it is without fear of the application of force or the result of actual or threatened force, then the act of sexual connection would not be rape.
Subjective Test - Absence of consent
Whether or not the complainant was consenting is a subjective test from the complainant’s point of view, i.e. what was the complainant thinking at the time?
The Crown must prove that the complainant was not consenting to the sexual act at the time it occurred – it is not for the defendant to prove that he/she was consenting.
Subjective Test - Belief in consent
If it is established that the complainant was not consenting, the next question is whether or not the defendant believed he/she was consenting at the time. This is a purely subjective test from the defendant’s point of view, i.e. what was the defendant thinking at the time?
If he/she did believe he/she was consenting, an objective test must then be applied to determine whether there was a reasonable basis for his/her belief.
Objective Test - Reasonable grounds for belief in consent
The objective test is: what would a reasonable person have believed if placed in the same position as the defendant?
If a reasonable person would, in the same circumstances, have believed the complainant was consenting, the jury may well acquit the defendant. If a reasonable person would not have believed he/she was consenting, the jury is more likely to convict.
Matters not constituting consent
Section 128A outlines situations where any apparent consent will not be valid, including, for example, where a person submits to sexual activity as a result of fear or force, or is unaware of the conduct because he or she is asleep or unconscious.
The validity of consent may also be questionable when the person consenting suffers from mental incapacity, or consents on the basis of certain types of mistake.
Recklessness as to consent
Recklessness as to whether the complainant is consenting or not is not consistent with having a reasonable belief in consent.
Relevant consent
In Court in R v Adams7 discussed this matter and found that “the material time when consent, and belief in consent, is to be considered is at the time the act actually took place.
The complainant’s behaviour and attitude before or after the act itself may be relevant to that issue, but it is not decisive.
The real point is whether there was true consent, or a reasonably based belief in consent, at the time the act took place.”
Force, threat or fear of force
Force
Allowing sexual activity does not amount to consent to sexual connection if some degree of force has been used to obtain compliance. Although the Act does not specify the degree of force necessary, force that is intended or sufficient to cause bodily harm would normally negate a claim that consent had been given. A lesser degree of force would be accepted if it caused the victim to submit or acquiesce to the act.
Threat
The threat must be a threat to use force against the victim or some other person. Again, the circumstances of the case will establish whether the threat was sufficient to negate the claim of genuine consent.
Fear
The victim must be afraid that force will be used against them or another person, even if the force was not actually used or threatened. (R v Koroheke)
Section 128A
Outlines situations where any apparent consent will not be valid.
Asleep or unconscious
Sexual activity while the complainant is asleep or unconscious is non-consensual, based on the fact that the relevant time for consent is the time of the sexual activity without reference to things said or done before or afterwards.
Affected by alcohol or drugs
The influence of alcohol and drugs may have an impact on a person’s ability to give valid consent, however consent is not invalid simply because the person is intoxicated. The question is whether they were affected to such an extent that they were incapable of understanding the situation and giving rational or reasoned consent.
Intellectual, mental or physical impairment
Where the validity of a person’s consent is in question due to impairment, the issue is whether the impairment was sufficiently severe so as to deprive the complainant of the capacity to give or withhold consent.
Where the threshold for sexual violation has not been met, but the defendant has taken advantage of the complainant’s vulnerability, a charge should be considered under s138 of the Crimes Act 1961 – sexual exploitation of a person with significant impairment.
Mistake as to identity
The complainant’s consent is nullified if it is based on the mistaken identity of the other person.
For example, a woman may have consented to be a surrogate mother for a couple, and is expecting a visit from the father. However, another man comes to the house and, taking advantage of her mistaking his identity, has sexual intercourse with her. In such a case, even though she had sex with the man willingly, her consent is not valid in that it was based on a mistaken identity. That man is liable for sexual violation by rape.
Note that the mistake is one made by the person submitting to the sexual connection, not a mistake by the defendant.
Mistake as to nature and quality of act
Consent is also nullified when the complainant was unaware of the true nature of the physical act to which they were agreeing. Such mistakes are limited to the physical character of the sexual connection.
