Consent

Question 1

What makes sexual connection unlawful?

What must the crown prove?

Answer 1

• The complainant did not
  consent (subjective)
• The offender did not believe
  the complainant was
  consenting (subjective)

OR

• If he did believe she was
  consenting, the grounds for
  such a belief were not
  reasonable (objective)

Question 2

Explain consent

Answer 2

‘Consent’ is a persons conscious and voluntary agreement to something desired or proposed by another

Question 3

R v Cox

Answer 3

Consent must be “full, voluntary, free and informed…freely and voluntarily given by a person in a position to form a rational judgement”.

Question 4

Explain reluctant consent

Answer 4

True consent may be given reluctantly and may be regretted afterwards, but if the consent is given, provided it was without fear of force then the sexual connection would not be rape.

Question 5

R v Gutuama

Answer 5

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”.

Question 6

Explain recklessness in regards to consent

Answer 6

Recklessness as to whether the complainant is consenting or not is not consistent with having a reasonable belief in consent.

Question 7

When is consent relevant?

Answer 7

The material time when consent, and belief in consent, is to be considered is at the time the act actually took place.

The complainants behaviour and attitude before and after the act itself may be relevant to that issue, but it is not decisive.

Question 8

Allowing sexual activity does not amount to consent in some circumstances (1-8)

Answer 8

Section 128A

1. Does not protest or offer physical resistance
2. Allows because of force, threat of force or the fear of application of force
3. Asleep or unconscious
4. Affected by alcohol or drugs
5. Intellectual, mental or physical condition or impairment
6. Mistaken about identity
7. Mistaken about nature and quality
8. This section does not limit the circumstances in which a person does not consent to sexual activity

Question 9

R v Koroheke 2 (Mongrel Mob)

Answer 9

It is important to distinguish between consent that is freely given and submission to what sees as unwanted but unavoidable.