Consent Flashcards
What is effective consent?
R V COOK
It must be real, genuine or true consent, and it may be conveyed by words or conduct or both.
Reluctant Consent
True consent may be given reluctantly or hesitantly and may be regretted afterwards, but if the consent is given at the time then the act of sexual connection would not be unlawful.
Provided it is given without fear of force or the result of actual or threatened force.
Explain the subjective test - absence of consent
Whether or not the complainant was consenting is a subjective test, from the complainants point of view.
The crown must prove they were not consenting.
Explain the subjective test - belief in consent
If it is established that the complainant was not consenting, the next question is whether or not the defendant believed they were consenting at the time. It is purely subjective from the defendants point of view.
Explain the objective test - RG for belief in consent
If he did believe the complainant was consenting, the grounds for such belief were not reasonable.
No consideration for defendant’s characteristics, ie affected by alcohol etc.
R V GUTUAMA Under the objective test the Crown must prove that “No reasonable person in the accused shoes could have thought that the complainant was consenting.”
Explain recklessness as to consent
Establishing the defendant was reckless as to whether or not the complainant was consenting satisfies the requirement that any belief in consent was not held on reasonable grounds.
when is consent relevant?
the material time when consent and belief in consent is to be considered is at the time the act took place.
Behavior before and after may be relevant but is not decisive.
Was there true consent or reasonable grounds for belief in consent at the time the act took place?
Allowing sexual activity does not amount to consent in some circumstances
Describe the section that covers these circumstances.
CA.61 S.128A
PAASSMM
-Not protesting or offering physical resistance
-Application/threats/fear of force to self or other
-Asleep or unconscious
-So affected by drugs/alcohol they can’t consent or refuse
-So affected by mental or physical impairment of such a nature or degree they cant consent or refuse.
-Mistaken as to who the other person is
-Mistaken as to nature and quality of the act
Consent - Lack of protest or consent
Lack of protest or resistance does not mean the complainant is consenting. Subjective test regarding complainants state of mind.
It may go be relevant to if the defendant believed in consent or had reasonable grounds for belief.
Consent - Use of force
allowing sexual activity does not amount to consent if some degree of force has been used to gain compliance. It is usually intended or sufficient to cause bodily harm, or less if it caused the victim to submit or acquiesce to the act.
Consent - Threat of force
threat must be a threat to use force against the victim or some other person. Circumstances will establish whether the threat was sufficient to negate the claim of genuine consent
Consent - Fear offorce
The victim must be afraid that force will be used against them or another person, even if the force was not actually used or threatened.
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 i nor co-operate, is not true consent.
Consent - Asleep or unconscious
sexual activity while the complainant is asleep or unconscious is non-consensual. The relevant time or consent is at the time of the act without reference to things said or done before or afterwards.
Consent - Affected by alcohol or drugs
The influence of alcohol and drugs may have an impact on a person’s ability to give consent, consent is not invalid simply because the person is intoxicated. The question is were they were affected to such an extent that they were incapable of understanding the situation and giving rational and reasoned consent.
The complainant must be able to understand their situation and be capable of making up their own mind when agreeing to sexual acts.
Evidence and memory of consent
In cases where the complainant is asleep, unconscious, or so affected by alcohol or drugs that they cannot give valid consent, it will often be the case that the complainant will have very little or no recollection of the events. As such it is not essential in these cases that there be evidence the complainant did not consent.
