Consent Flashcards
What must the Crown prove in establishing if sexual connection is unlawful?
- the complainant did not consent to the sexual act (a subjective test), and
- the offender did not believe the complainant was consenting (a subjective test), or
- if he did believe she was consenting, the grounds for such a belief were not reasonable (an objective test).
** EXAM ** - Consent defined
“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another.
** EXAM ** - Consent Case Law
R v Cox
Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgement”.
What was held in R v Herbert regarding reluctant consent?
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.
** EXAM ** - Objective test - Case Law
R v Gutuama
Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought that [the complainant] was consenting”.
When is consent relevant?
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 is not decisive.
Reference: R v Adams
** EXAM ** - Matters not constituting consent *
Section 128A - CA 1961
- lack of resistance
- force, threat or fear of force
- asleep or unconscious
- affected by alcohol or drugs
- affected by intellectual, mental or physical condition or impairment of such a nature and degree
- mistaken ID
- mistaken about nature and quality
** EXAM ** - Distinguishing consent - Case Law
R v Koroheke
It is important to distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable. For example, submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.
** EXAM ** - Reasonable grounds for consent - three step process and questions to ask
Step 1: What was the complainant thinking at the time? Was she consenting - (subjective test)
Step 2: If she was consenting, did the defendant believe she was consenting? What was the defendant thinking at the time? (subjective test)
Step 3: If the offender believed the complainant was consenting, was that belief reasonable in the circumstances? What would a reasonable person have believed if placed in the defendant’s shoes? (objective test)