Sexual Assault Offences - Consent

Question 1

What is the legal definition of consent?

Answer 1

There is no legal definition of consent, however; It is generally understood as something that is voluntary and deliberate, the consideration and acceptance of the proposal of another. As it is voluntary and deliberate (free in a sense), it cannot be coerced or compelled, to a degree.

Consent is present in both actus reus and mens rea. This distinction is important.

Question 2

Can consent be given under any degree of coercion?

Answer 2

Consent is regarded as voluntary and deliberate, that is free. However, within law, it is based on the circumstances.

Therefore it is important to bear in mind, that it is all to a degree. The crucial element is the ability to make a choice. Consent may be given in coercive circumstances but it may not be to the degree it negates consent. However; when in circumstances that coercion is so great it forecloses any ability by the defendant to make a rational choice, it will negate.

R v Brewer - prospective boss foreclosed the defendants ability to make rational choices given the degree of coercion.

Question 3

Does consent need to be positive within NZ?

Answer 3

In NZ, as supposed to other jurisdictions, consent can be inferred from the circumstances.

However, if and when this is appropriate goes on a case-by-case basis. The lack of a positive consent standard reflects the non-verbal element intrinsic to human interaction and mating.

Question 4

What is the statute and provisions that define instances where consent is negate?

Answer 4

Section 128A defines instances in where consent is negated;

(1) The fact that person A does not offer resistance to person B does not equate to consent.
(2) Use of force, threat of force or fear of force negates consent.
(3) One cannot consent while asleep or unconscious.
(4) Once cannot consent if under the influence of alcohol or drugs to a sufficient degree.
(5) If one is impaired (with respects) to a sufficient degree, their consent is invalid.
6) Mistakes as to the identity of the person negates consent.
(7) Mistakes as to the nature and quality of the act negates consent.
(8) This list is not exhaustive.

Actus reus and mens rea distinction is important to bear in mind, actus reus may be met if the victim does not in fact give consent, however, if circumstances are right, the defendant may well perceive consent to be given, mens rea not met if the case.

Question 5

What provision covers lack of protest and resistance?

Answer 5

Section 128A (1) Lack of protest or physical resistance does not equate to consent.

Question 6

What provision covers the use, threat or fear of force?

Answer 6

Section 128A (2) Use of force, threat of force either express or implied, fear of force negates consent.

Question 7

What are the ‘incapacity’ provisions?

Answer 7

The incapacity provisions covers Section 128A, ss (3) to (5)

(3) Consent cannot be given if the victim is asleep or unconscious.
(4) Consent is negated if one is sufficiently under the influence of alcohol or drugs.
(5) Consent is negated if the victim is sufficiently impaired (intellectually, mentally or physically).

Question 8

What are the ‘mistaken’ provisions?

Answer 8

Mistakes are covered in Section 128A (6)-(7)

(6) Mistakes to the identity of the person negates consent.
(7) Mistakes to the nature and quality of the act negates consent.

Question 9

Does lack of protest or resistance equate to consent?

Answer 9

No, see Section 128A, ss (1) The fact that the victim did not offer protest or physical resistance does not mean that consented to the sexual connection. Refer to context.

R v Hallet - Prostitute gang raped, victim did not protest or offer any physical resistance because she deemed it useless. Court affirmed that lack of protest or physical resistance did not mean she consented. Consideration of context, threatening environment.

R v Murphy - Women was asleep while the defendant penetrated her. Court ruled that since she was asleep and could not protest or resist, that does not mean she consented. Consideration of context, consent cannot be given while asleep.

From an actus reus perspective, the emphasis is on whether consent was present rather than the physical manifestations of consent. However, manifestations are important to the determination of the defendants mens rea, in addition to wider contextual factors.

Question 10

What are the principles of Christian v R?

Answer 10

In NZ, consent can be inferred from the context.

However, the lack of protest and physical resistance cannot infer consent. This is not a mandate for positive consent rather a referral to other contextual considerations For example: prelude to rough sex or role play.

Question 11

What is the relationship expectation defence with regards to mens rea and consent?

Answer 11

Relationship expectation is the defence in where the sexual context between A and B leads B to have reasonable grounds to believe consent was given. This is a mens rea element, from the perspective of the defedant.

See R v S. Accused had sex with the complainant, who was asleep. Accused was aquatinted on the basis that the context of relationship allowed for it. They had both reached an understanding that the accused could have sex with her unconscious so long as he did not ejaculate. Consent was not given however, this provided the accused with reasonable grounds to think it was, in spite of his ignorance to the law.

Question 12

Can someone consent while asleep or unconscious?

Answer 12

No, Section 128A (3) states that consent is negated if the victim is asleep or unconscious.

Question 13

Can someone give prior consent to sexual activities that may occur when one party is asleep or unconscious?

Answer 13

No, see Section 128A (3).

Court ruled that prior consent is negated as parliament intended that conscious consent must be given at all times. To safeguard against exploitation.

See R v S, in where consent for unconscious sex was negated despite prior agreement.

Question 14

Can someone consent when they are under the influence of alcohol and/or drugs?

Answer 14

It depends. See Section 128A (4).

“…if so affected…”

Consent can still be given only if not sufficiently affected by substance, that is to a degree.

Question 15

What degree reaches the threshold where consent is withdrawn, with regards to drug and alcohol?

Answer 15

If a person is sufficiently under the influence as to affect their capacity to give or withhold consent. Must consider the degree of disinhibition. Certainly to the degree of unconsciousness.

In considering mens rea, was it reasonable of the accused to accept consent was provided.

Question 16

Is consent negated when force is applied or threatened?

Answer 16

If consent is extracted with the use of physical force or threat of force, then consent is negated.

Question 17

Is consent negated if the complainant held a genuine fear of force?

Answer 17

Consent is negated in instances where the complainant had a genuine fear that force will be applied if she fails to consent.

It is important to note that in such circumstances, the fear need not be a reasonable one.

Question 18

Does force need to be present for it negate consent?

Answer 18

In instances where consent is given out of fear of force, the force itself need not be at hand in that moment.

Question 19

What constitutes force under Section 128A (2)?

Answer 19

The law is unclear as to what constitutes force. It’s certainly understood as physical force, that is some degree of bodily harm. Whether or not it is limited to that is unclear.

Question 20

Can psychological fear be sufficient on its own?

Answer 20

The law has no clear ruling on this matter.

It is possible that the complainant may fear the defendant not because of physical force but what he/she can do her life and those they care about. However, it remains unclear.

Question 21

Consent can still be given even when there is a degree of coercion, physical or otherwise. At what threshold is that negated?

Answer 21

Within marriages and relationships, a higher degree of force (horseplay) is permitted. This plays into the relationship expectation device. Consent is required from all parties but may be the ground on which the defendant may prove reasonable belief.

Outside those confines, a lower threshold of force is the standard and if sufficient to foreclose the victims ability to decide will negate consent.

See Cases Stated by Director of Public Prosecutions.

Question 22

What are the facts and principles of R v Oluboja with regards to the use of force?

Answer 22

Woman raped twice, on the second occasion she did not resist despite there being no physical force or fear of, to illicit sexual connection.

Court found that consent was not given on the basis that there was a genuine fear even though it was not expressly stated.

Question 23

To what degree can a mentally impaired person not give consent?

Answer 23

Similar to the framework for alcohol and drugs.

If the mental impairment is of such a degree to deprive the victim the capacity to give and withhold consent.

Important to note that this is considered at the time of the offence.

Question 24

What are the mental capacity considerations behind determining if one is too mentally impaired to consent?

Answer 24

In order for the consent of someone mentally impaired to stand, they must;

Have an understanding of the act proposed, the rights associated with it and an ability to say no.

All of them must be met for consent to be valid otherwise, it is negated on the basis that the mental impairment is of such a degree that they don’t have the capacity to consent.

Question 25

With regards to the mentally impaired, is arousal a reasonable ground to believe consent in spite of lack of capacity? (mens rea)

Answer 25

No.

Once the common law allowed defences based on arousal, the so called animal instinct defence, that a defendant could be held to have reasonable belief.

Statute has repealed that.

Question 26

What are the parameters under which consent can be negated when there is a mistake to the identity of the person?

Answer 26

When person A makes mistake about the identity of person B. In such a case, consent is negated so long as there was no opportunity for person A to make an informed choice regarding person B’ identity.

Question 27

What are the facts and principles of R v M with regards to a mistake to the identity of the person?

Answer 27

M impersonates himself as P in order to lure his ex, the victim, into having sex with him. The elaborate ruse succeeds.

The victim concedes that he suspected P to be M during the course of the ruse. On those grounds M was found not guilty as the victim could not have been fully mistaken if she was suspicious.

The crucial principles is that there must be a mistake and that uncertainty does not meet that threshold.

Question 28

With regards to mistake in identity, does the accused need to be aware that the accuser may have been mistaken?

Answer 28

Yes, this is apart of the reasonable (subjective objective) person test. It is not enough to say that the person appeared to have consent but that they were certain of who they were as well.

This is especially important in cases where there are multiple actors on the facts.

Question 29

What are the parameters of mistakes as to the nature and quality of the act?

Answer 29

With regards to the nature of the act, consent is negated if the act of sex is portrayed as something else. If the complainant knew the act to be sex then there is no mistake as to the nature of the act.

With regards to the quality of the act, quality refers to sexual risks. It affects factors that may influence the deliebration in giving consent and the parameters of that consent.

Question 30

What metric is used to determine which factors require disclosure with regards to the mistakes?

Answer 30

The metric for what requires disclosure is the element of risk involved.

See R v Lee; knowledge of a serious risk in sex triggers duty to discolse as to reveal the quality of the act.

Note that risk is inherent to the act of sex, however, if there is something that one ought to know of some risk, then disclosure is required (Knowledge Imbalance)

Question 31

Where does fraudulent persuasion factor into mistakes as to the nature and quality of the act?

Answer 31

It is most relevant in cases where sex, or the nature, is made clear but construed for questionable purposes, that is to the quality of the act.

This is most apt in the medical sphere where sex is used as a “cure” to aliments.

Question 32

With regards to mistakes as to the nature and quality of the act, how does fraud vitiate medical consent?

Answer 32

If fraud is used to misrepresent sex as a cure, effectivley leaving the victim with no option (foreclose) but to consent, consent is vititated.

Question 33

What does R v Mobilio stand for?

Answer 33

R v Mobilio

Nature and quality of the medical act made clear but it was not the only means to achieve desired ends. Instead it was chosen to sexually gratify the doctor.

Ruled not guilty, but very marginal case, should not be used as a standard.