Consent Flashcards
What makes sexual connection unlawful?
Establishing if sexual connection is unlawful involves a mixed subjective/objective test in relation to consent.
The crown must prove that:
- The complainant did not consent to the sexual act (subjective test) AND
- The offender did not believe the complainant was consenting (subjective test) OR
- If he did believe she was consenting, the grounds for such belief were not reasonable (objective test)
Define ‘Consent’
Is a person’s conscious and voluntary agreement to something desired or proposed by another.
R v COX - Consent
Consent must be full, voluntary, free and informed…freely and voluntarily given by a person in a position to form a rational judgement.
‘Reluctant Consent’
True consent may be given reluctantly or hesitantly and may be regretted afterwards, but if the consent is given in such a manner,
without fear of the application of force, actual or threatened force, then the act of sexual connection would not be rape.
Subjective test - ‘absence of consent’
Was the complainant consenting - What was the complainant thinking at the time?
Subjective test - ‘belief in consent’
Did the defendant believe the complainant was consenting - What was the Defendant thinking at the time?
Objective test - ‘reasonable grounds for belief in consent.’
If the defendant believed the complainant was consenting, What would a reasonable person have believed if placed in the same position as the defendant?
R v GUTUAMA - Objective test
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.”
‘Recklessness as to consent’
Recklessness as to whether the complainant is consenting or not is not consistent with having a reasonable belief in consent.
When is ‘Consent’ relevant?
True consent and belief in consent must be considered at the time the act actually took place.
