Legal Defences

Defence of Consent

The Legal Defence of Consent in Victoria

Consent arises when the accused holds a reasonable belief that the complainant is consenting to the act being committed against them. It may be used as a legal defence to criminal charges that require the absence of consent and/or lawful excuse to be proven.

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Consent as a Defence in Criminal Law

In Victoria, consent may be a valid legal defence in relation to a range of criminal offences against the person. Most commonly it is used as a defence to rape and sexual assault charges. However, it may also apply to offences such as theft, trespass and criminal damage.

The consent defence arises when the accused holds a reasonable belief that the complainant is consenting to the act being committed against them. Consent in relation to sexual offences is defined as a “free agreement” (s36 Crimes Act 1958 (Vic)). It can be given by way of words, non-verbal conduct or a combination of both.

The defendant must prove consent based on the facts and evidence available. The prosecution will attempt to prove that the accused did not hold a reasonable belief of consent. In deciding whether the belief of the accused was reasonable, the court must consider all of the circumstances of the alleged offence.

Circumstances in Which a Person Does Not Consent

Section 36(2) of the Crimes Act 1958 (Vic) notes circumstances under which a person is automatically considered unable to give legal consent in relation to sexual activity. The list is not exhaustive but includes circumstances under which the person:

  • Submits to the act because of force to themselves or someone else;
  • Submits to the act because of the fear of force or harm of any kind to themselves, someone else or an animal;
  • Submits to the act because they are unlawfully detained;
  • Is asleep or unconscious;
  • So affected by alcohol or another drug as to be incapable of consenting to the act;
  • So affected by alcohol or another drug as to be incapable of withdrawing consent to the act (this may apply even if the person was sober enough to consent at the time of consenting).
  • Is incapable of understanding the sexual nature of the act;
  • Is mistaken about the sexual nature of the act;
  • Is mistaken about the identity of any other person involved in the act;
  • Mistakenly believed that the act is for medical or hygienic purposes;
  • Engages in an act with an animal and mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes;
  • Does not say or do anything to indicate consent to the act; or
  • Having given consent, later withdraws consent to the act taking place or continuing.

Consent in Matters Involving Children and Cognitive Impairment

In sexual offences involving children, consent may not be a legal defence. There is an automatic presumption that children are unable to give consent. Even if the child agrees to the sexual act, the accused can still be charged and held criminally liable. However, certain conditions and exceptions apply:

  • If a child is under the age of 12, it is automatically presumed that they cannot consent to a sexual act in any way.
  • If a child is aged 12-15, it is automatically presumed that they cannot consent to a sexual act with any person aged more than two years older than them. However, a defence may exist if the accused honestly believed the child was 16 or older.
  • The age of consent in Victoria is 16. However, a person aged 16 or 17 cannot consent to a sexual act with a person in a position of care, supervision or authority (unless the parties are married). However, a defence may exist if the accused honestly believed the person was 16 or older.

Similarly, in certain sexual offence matters involving people with cognitive impairment, consent may not be a legal defence. This is the case if the accused provides medical or health services or works or volunteers in a residential facility with the cognitively impaired complainant.

Consent as a Legal Defence to Sexual Offences

Under the Crimes Act 1958 (Vic), the absence of consent is a necessary element in the following sexual offences:

  • Rape (s38)
  • Rape by compelling sexual penetration (s39)
  • Sexual assault (s40)
  • Sexual assault by compelling sexual penetration (s41)
  • Assault with intent to commit a sexual offence (s42)

 

This means that the accused can only be found guilty if the prosecution proves beyond a reasonable doubt that there was an absence of consent. That is, the sexual offence was:

  • Committed in circumstances where the complainant did not freely agree to the act; and
  • Given the circumstances, the accused could not have reasonably believed that the complainant freely agreed to the act.
Whether or not the accused ‘reasonably believed’ that the complainant was consenting to the act depends on the circumstances (s36A of the Crimes Act 1958 (Vic)). In assessing the circumstances, the Court must consider whether the accused took any steps to determine if the complainant was consenting or not consenting. The only exception to this is matters regarding ‘assault with intent to commit a sexual offence’ (s42(1)); in which case the Court must consider whether the accused took any steps to determine whether the complainant would consent to the act.

A reasonable belief cannot be based solely on stereotypes or preconceptions (even if those stereotypes or preconceptions are grounded in a culture or religion to which the parties belong). Similarly, a reasonable belief cannot be partly or wholly based on general assumptions.

The level of intoxication of the accused is not taken into consideration when assessing reasonable belief. However, a jury can take the personal attributes and characteristics of the accused into account when determining if the accused had a reasonable belief in consent (s47(3) Jury Directions Act 2015 (Vic)).

The court must assess the ‘circumstances’ of the case based on the evidence at hand. In doing so, the court can look at what the community would reasonably expect of the accused in the circumstances. If the accused meets community expectations, it is likely that the court will deem that they had a reasonable belief in consent.

Should the court find that the accused held a reasonable belief that the complainant was consenting, it must find the accused not guilty.

Consent as a Legal Defence to Other Offences

Criminal law in Victoria does not allow people to consent to the infliction of actual or grievous bodily harm. However, exceptions apply. For example, sporting events and surgical procedures might require the accused to consent to the infliction of harm. An exception such as this is known as a ‘lawful excuse’.

A lawful excuse may include any circumstance where the infliction of actual bodily harm is an expected and normal consequence of the activity involved (R v Wilson [1996]). However, the activity itself must be lawful and not inherently dangerous to life or limb (Pallante v Stadiums Pty Ltd [1976]). Further examples of lawful excuse might include tattooing, body piercing and male circumcision.

In matters involving lawful excuse, we must turn to common law, which states that ‘an assault with consent is not an assault at all’ (R v Schloss (1897)). This means that a person has no right to complain about harm suffered if:

  • A lawful excuse existed for the application of force;
  • The person consented to the application of force; and
  • The harm suffered is within the bounds of the lawful excuse that was consented to.

However, if the person was under the influence of drugs or alcohol at the time of consenting, this may negate consent.

As such, consent may potentially provide a legal defence to any criminal charge that relies on the absence of a lawful excuse.

Obtaining Legal Advice

Consent is a difficult defence to prove and requires professional consideration. If you have been charged or are under investigation for allegedly committing a criminal offence, please contact our team at Sher Criminal Lawyers. We will help you achieve the best possible outcome by applying our extensive legal experience and expertise. One of our criminal law specialists will assess whether consent or any other defence is relevant to your case before planning a unique and calculated legal strategy. We are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.

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