Invalid Consent Flashcards
Matters that do not constitute consent (PIN FAIA) - Section 128A and (8) & (9)
A person does not consent to sexual activity:
(1) Just because he or she does not Protest or offer physical resistance to the activity
(2) With another person if he or she allows the sexual activity because he or she is mistaken about the other person’s Identity.
(3) If he or she allows the act because he or she is mistaken about its Nature and quality.
(4) If he or she allows the activity because of
- Force applied to him or her or some other person
- The threat (express or implied) of the application of force to him or her or some other person
- The fear of the application of force to him or her or some other person
(5) If the activity occurs while he or she is Asleep or unconscious.
(6) If the activity occurs while he or she is affected by an Intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.
(7) If the activity occurs while he or she is so affected by Alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
(8) This section does not limit the circumstances in which a person does not consent to sexual activity.
(9) For the purposes of this section,—
allows: includes acquiesces in, submits to, participates in, and undertakes sexual activity,
- *in relation to a person:** means—
(a) sexual connection with the person; or
(b) the doing on the person of an indecent act that, without the person’s consent, would be an indecent assault of the person.
Lack of protest or resistence
A lack of protest or resistance does not mean a person is consenting, even if the lack of consent has not been communicated to the defendant; what is relevant is the complainant’s state of mind.
The fact that the complainant’s lack of consent has not been communicated to the defendant may, however, be relevant to whether he believed she was consenting, and whether that belief was reasonable.
Force, threat or fear of force
Force: Allowing sexual activity does not amount to consent to sexual connection if some degree of force has been used to obtain compliance.
Threat: The threat must be a threat to use force against the victim or some other person. Again, the circumstances of the case will establish whether the threat was sufficient to negate the claim of genuine consent.
Fear: 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 - 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.
Asleep or unconscious
Section 128A(3) - sexual activity while the complainant is asleep or unconscious is non-consensual, based on the fact that the relevant time for consent is the time of the sexual activity without reference to things said or done before or afterwards.
Even prior agreement to sexual activity that is to occur once the complainant is asleep or unconscious does not constitute consent.
Affected by alcohol or drugs
Consent is not invalid simply because the person is intoxicated. The question is whether they were affected to such an extent that they were incapable of understanding the situation and giving rational or reasoned consent.
Intellectual, mental or physical impairment
The issue is whether the impairment was sufficiently severe so as to deprive the complainant of the capacity to give or withhold consent.
If the defendant has taken advantage of the complainant’s vulnerability (but no sexual violation), consider S138 - sexual exploitation of a person with significant impairment.
Mistake as to identity
The complainant’s consent is nullified if it is based on the mistaken identity of the other person.
R v Murphy - Murphy was convicted of rape on the basis that he had taken advantage of her mistake as to his identity.
Mistake as to nature and quality of the act
Consent is also nullified when the complainant was unaware of the true nature of the physical act to which they were agreeing.
Eg, if the complainant agrees to an act other than intercourse but intercourse in fact takes place, they cannot be said to have given their genuine consent.
R v Flattery - a 14 year old girl consented to intercourse because she had been led to believe that it was a form of medical treatment.
Any other fraudulent representation
Any fraud or fraudulent representation that makes the complainant become mistaken about something other than the offender’s identity or the nature or quality of the act will not affect the fact that consent was given.
Sexual activity
The sexual activity to which S128A applies includes sexual connection as defined in S2, and indecent assault.
