Consent Flashcards

1
Q

What must the Crown prove in establishing if sexual connection is unlawful?

A
  • 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).
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2
Q

** EXAM ** - Consent defined

A

“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another.

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3
Q

** EXAM ** - Consent Case Law

A

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”.

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4
Q

What was held in R v Herbert regarding reluctant consent?

A

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.

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5
Q

** EXAM ** - Objective test - Case Law

A

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”.

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6
Q

When is consent relevant?

A

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

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7
Q

** EXAM ** - Matters not constituting consent *

A

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
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8
Q

** EXAM ** - Distinguishing consent - Case Law

A

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.

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9
Q

** EXAM ** - Reasonable grounds for consent - three step process and questions to ask

A

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)

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