Sexual harassment and abuse – Define ‘consent’

Statutory definitions for consent have been developed in all states and territories of Australia, with the exception of the Australian Capital Territory. The Crimes Act 1900 (NSW) contains the relevant definition that applies in New South Wales (section 61HE).

What the jury would try to determine is the defendant’s knowledge and state of mind at the time of the sexual conduct in question and, importantly, whether they had a reasonable basis to believe that the other person consented to the act and the steps they took to ascertain or confirm such consent.

Defining consent

Consent is difficult to define. That’s because the line between consent and submission can be very complex.

Neither resistance or injury are required to prove lack of consent.

The statutory definition of consent requires that the person freely and voluntarily agrees to the sexual activity. Our definition aligns with the United Nations Division for the Advancement of Women, which recommends that legislation approaches consent as ‘unequivocal and voluntary agreement’ and requires the accused to prove steps were taken to ascertain legal consent.

Where there is no consent

In all Australian jurisdictions, consent to sexual activity is not assumed for a person unlawfully detained.

Consent is deemed to be absent where agreement to engage in sexual activity is obtained by intimidation, coercive conduct, fear of harm, extortion, deceit or fraud.

In NSW, as in most other states, when the complainant is asleep or unconscious, there is no consent. Where the complainant was substantially intoxicated by alcohol or any drug, there may be no consent. The degree of intoxication and whether it was such that a person was ‘unable to consent’ are matters for the jury.

There is no consent in cases where sexual consent was given through mistaken belief that it was for medical or hygiene purposes, or where agreement to an act was due to false or fraudulent representations about the nature or purposes of the act.

There is no consent where the person consenting to the sexual act does not have the capacity to understand the nature of the act.

Abusing a position of authority or trust is another occasion where there may be no consent. Further, it is an offence for a person to engage in sexual activity with a person in their care who has a cognitive impairment – consent is not a defence in that instance.

Mistaken identity is another circumstance in which there is no consent, including where the complainant mistakenly believed that he or she was married to the person.

You might also be interested in reading our previous article:

The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.

Article by Thomas Galton

Thomas Galton Senior Associate



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