Liability for sexual offences against adults generally requires that the victim did not consent. Where the complainant and the defendant know each other, particularly in the context of a previous or current intimate relationship, the issue of consent is particularly complex.

Time for Action noted variations across Australia in terms of:

  • the definition of consent;
  • the conditions or circumstances that are seen as negating consent;
  • the way in which an accused’s ‘honest belief’ in consent is dealt with; and
  • the use of judicial directions as a way in which to inform and educate the jury about what amounts (or does not amount) to consent.

Statutory definition of consent

With the exception of the ACT, every Australian jurisdiction has a statutory definition of consent based on one of the following three approaches:

  • free agreement;
  • free and voluntary agreement; or
  • consent freely and voluntarily given.

The Commissions support the adoption of a statutory definition of consent across all Australian jurisdictions. The Commissions’ view is that the preferred statutory definition of consent is ‘free and voluntary agreement’. This definition is consistent with the Model Criminal Code, and has been adopted by the Commonwealth, NSW, South Australia and the Northern Territory. The Commissions agree that including the term ‘agreement’ reinforces positive and communicative understandings of consent and suggests mutuality.

Proposal 16–2 Commonwealth, state and territory sexual offences legislation should provide statutory definitions of consent based on ‘free and voluntary agreement’.

Circumstances that negate consent

Legislation in every Australian jurisdiction provides a non-exhaustive list of circumstances that negate or vitiate consent. If the prosecution proves a negating factor or vitiating circumstance in a particular case, consent will not be a fact in issue at trial. Many of the negating factors are common to all Australian jurisdictions. There is, however, considerable variation in scope and approach. Some of the negating factors prescribed by legislation merely codify the position at common law; others go beyond the common law position—rectifying anomalies, deficiencies or gaps.

The Commissions consider that it is desirable that such lists be non-exhaustive, as is the case in all Australian jurisdictions. The Commissions are interested in comment about how the various vitiating provisions relate to complainants who have experienced sexual assault in a family violence context. Issues may arise, for example, in relation to whether long standing and pervasive family violence creates a coercive, intimidating or threatening environment (whether or not there are threats of physical force); and as a corollary, whether such a family violence context may negate consent to sexual activity. Do actual threats or coercive behaviours need to be immediately present to be considered to vitiate consent?

Proposal 16–3 Commonwealth, state and territory sexual offences legislation should prescribe a non-exhaustive list of circumstances where there is no consent to sexual activity, or where consent is vitiated. These need not automatically negate consent, but the circumstances must in some way be recognised as potentially vitiating consent. At a minimum, the non-exhaustive list of vitiating factors should include:

  1. lack of capacity to consent, including because a person is asleep or unconscious, or so affected by alcohol or other drugs as to be unable to consent;
  2. the actual use of force, threatened use of force against the complainant or another person, which need not involve physical violence or physical harm;
  3. unlawful detention;
  4. mistaken identity and mistakes as to the nature of the act (including mistakes generated by the fraud or deceit of the accused); and
  5. any position of authority or power, intimidation or coercive conduct.

Question 16–6 To what extent are the circumstances vitiating consent set out in current legislation appropriate to sexual assaults committed in a family violence context? Are any amendments required to draw attention to the coercive environment created by family violence, or are the current provisions sufficient?

The mental element

In all jurisdictions, the prosecution must prove that sexual penetration took place without the consent of the complainant. These are the physical elements of the offence. In a number of jurisdictions a further element, the mental element, must also be proved in relation to consent. The mental element is the state of mind of the accused which must be established beyond reasonable doubt before the accused can be convicted.

In the common law jurisdictions, and the Northern Territory (a Code jurisdiction), the prosecution must prove that the defendant knew that the complainant was not consenting, or was reckless as to that consent.

In the remaining jurisdictions, the mental state for rape is satisfied by a mere intention to have intercourse. In these jurisdictions, while the prosecution must prove that the complainant did not consent, they do not have to prove that the defendant knew the complainant was not consenting or was reckless as to consent.

In all jurisdictions the defendant may raise a defence that he or she honestly believed that the complainant was consenting. Again, there is a clear difference of approach between most of the common law jurisdictions and the Code jurisdictions. In the common law jurisdictions, with the exception of NSW, this honest belief in consent need not be reasonable.[1] However, in the Code jurisdictions, and in NSW (a common law jurisdiction) this belief must be both honest and reasonable.

The law’s treatment of honest and mistaken belief remains an issue of continuing controversy. The availability of the defence is potentially an important issue for complainants who have, or have had, an intimate relationship with the accused and, therefore, is of particular relevance to the family violence context of this Inquiry. The intimate partner context may enable accused persons to raise a belief in consent based on past consensual activities or ways of agreeing to sexual encounters.

The Commissions’ preliminary view is that the issues are best addressed by adopting the current NSW formulation of honest and reasonable belief. The insertion of an objective element, or the modification of the subjective element by requiring reasonable steps to ascertain consent, has also been adopted by various overseas jurisdictions, for example in New Zealand, United Kingdom and Canada.

The Commissions are also concerned that ambiguity in relation to honest belief may be more likely to arise in the context of sexual assault occurring in a long standing sexual relationship. This is likely to create difficulties at trial for such cases. For example, where the accused and complainant have an ongoing relationship, the defence of honest and mistaken belief and its subjective nature may permit accused persons to concoct a mistaken belief, making the prosecution’s task of disproving the belief very difficult. The Commissions are interested in comment on how the defence of honest belief affects decisions made by the police and prosecutors about the likely prospects of a successful prosecution.

Proposal 16–4 Commonwealth, state and territory sexual offences legislation should provide that a person who performs a sexual act with another person, without the consent of the other person, knows that the other person does not consent to the act if the person has no reasonable grounds for believing that the other person consents. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case including any steps taken by the person to ascertain whether the other person consents, but not including any self-induced intoxication of the person.

Question 16–7 Is an honest belief in consent more likely to be raised in cases where the complainant has or has had an intimate relationship with the accused? If so, will the insertion of an objective element assist in these cases? Are other measures required to clarify or restrict the defence of honest belief in these cases?

Jury directions about consent

Research indicates that jurors find consent a difficult concept to understand and apply, and that jurors’ pre-existing attitudes have been found to influence their judgments more than the facts of the case and the manner in which the evidence was given.[2] For this reason, the Commissions provisionally support enacting positive directions on consent: what it is, when it is absent, and about the relevance of physical resistance and injury. Such directions may assist to reinforce the communicative model of consent and provide positive messages to the community about standards of sexual behaviour. In addition, they may operate as potentially powerful tools of cultural change for those involved in the prosecution of sexual offences.

Proposal 16–5 State and territory legislation should provide that a direction must be made to the jury on consent in sexual offence proceedings where it is relevant to a fact in issue. Such directions must be related to the facts in issue and the elements of the offence and expressed in such a way as to aid the comprehension of the jury. Such directions should cover:

  1. the meaning of consent (as defined in the legislation);
  2. the circumstances that vitiate consent, and that if the jury finds beyond reasonable doubt that one of these circumstances exists then the complainant was not consenting;
  3. the fact that the person did not say or do anything to indicate free agreement to a sexual act when the act took place is enough to show that the act took place without that person’s free agreement; and
  4. that the jury is not to regard a person as having freely agreed to a sexual act just because she or he did not protest or physically resist, did not sustain physical injury, or freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person, on an earlier occasion.

    Where the defence asserts that the accused believed that the complainant was consenting to the sexual act then the judge must direct the jury to consider:
  5. any evidence of that belief; and
  6. whether that belief was reasonable in all the relevant circumstances having regard to (in a case where one of the circumstances that vitiate consent exists) whether the accused was aware that that circumstance existed in relation to the complainant;
  7. whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and
  8. any other relevant matters.

[1]DPP v Morgan [1976] AC 182.

[2]N Taylor, Juror Attitudes and Biases in Sexual Assault Cases (2007), 3–5.