Consent Flashcards
What must the Crown prove to show that sexual connection was unlawful?
The Crown must prove that:
- 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).
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 judgment”.
Consent meaning ?
“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another.
“real, genuine or true consent, and that 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 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.
Subjective test - absence of consent
Whether or not the complainant was consenting is a subjective test from the complainant’s point of view, i.e. what was the complainant thinking at the time?
The Crown must prove that the complainant was not consenting to the sexual act at the time it occurred – it is not for the defendant to prove that he/she was consenting.
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 he/she was consenting at the time.
This is a purely subjective test from the defendant’s point of view, i.e. what was the defendant thinking at the time?
If he/she did believe he/she was consenting, an objective test must then be applied to determine whether there was a reasonable basis for his/her belief.
Objective test - reasonable grounds for belief in consent
The objective test is: what would a reasonable person have believed if placed in the same position as the defendant?
If a reasonable person would, in the same circumstances, have believed the complainant was consenting, the jury may well acquit the defendant.
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?
The complainant’s behaviour and attitude before or after the act itself may be relevant to that issue, but it is not decisive. The real point is whether there was true consent, or a reasonably based belief in consent, at the time the act took place.”
Matters not constituting consent
where a person submits to sexual activity as a result of fear or force, or is unaware of the conduct because he or she is asleep or unconscious.
Legislation - Allowing sexual activity does not amount to consent in some circumstances
Section 128A, Crimes Act 1961
A person does not consent to sexual activity If they :
- Don’t protest or offer physical resistance
2) Allow the activity because of:
a - force applied to them or some other person
b - threat of force to them or others (expressed or implied)
c - fear of the application of force to them or others
- Asleep or unconcious
- So affected by alcohol or drugs they cannot consent or refuse.
- Affected by an intellectual, mental or physical condidtion to such nature and degree they can’t consent or refuse
- Allows the activity due to mistaken identity.
- Allows the act as they were mistaken about the nature and quality.
R V Koroheke - consent
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.
