Consent

25.72 Sexual offences against adults generally require the prosecution to prove that the complainant did not consent to the sexual conduct. This is a matter for the jury to determine by reference to the complainant’s actual state of mind at the time the sexual conduct occurred.

25.73 In adult sexual assault trials, it is common for the defendant to admit sexual activity but assert a belief that it was consensual. This is a matter for the jury to determine by reference to the defendant’s actual state of mind—and, in some jurisdictions, by reference to whether that state of mind was reasonable—at the time the sexual conduct occurred. In a family violence context, where the complainant and the defendant know each other, the issue of consent is complex.

25.74 The report of the National Council to Reduce Violence Against Women and their Children (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 a defendant’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.[133]

Statutory definition of consent

25.75 Statutory definitions of consent seek to provide legal clarity, make clear that resistance and injury are not required to prove lack of consent, and educate the general community about ‘the boundaries of proscribed sexual behaviour’.[134] They may, however, be criticised as inflexible—because the dividing line between real consent and mere submission may be difficult to draw—and as introducing greater complexity.[135]

25.76 With the exception of the ACT,[136] every Australian jurisdiction has a statutory definition of consent based on one of the following formulations:

  • free agreement;[137]

  • free and voluntary agreement;[138] or

  • consent freely and voluntarily given.[139]

25.77 The legislation of all jurisdictions—except Queensland—also specifically addresses the continuation of sexual intercourse after consent has been withdrawn.[140]

25.78 The Australian definitions accord with the recommendation of the United Nations Division for the Advancement of Women that legislation should approach consent as ‘unequivocal and voluntary agreement’ and that the accused should be required to prove the steps taken to ‘ascertain whether the complainant/survivor was consenting’.[141]

25.79 The United Kingdom definition of consent explicitly requires agreement: ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’.[142] This model was initially recommended by the NSW Criminal Law Review Division in 2007 and included in its consultation draft bill.[143]

Consultation Paper

25.80 In the Consultation Paper, the Commissions proposed that federal, state and territory sexual offences legislation should provide statutory definitions of consent based on ‘free and voluntary agreement’.[144]

25.81 Stakeholders generally expressed support.[145] The Australian Institute of Family Studies (AIFS), for example, observed that a positive and communicative model of consent defined by legislation is an important step to take because it contributes to ‘a shift in how the offence of sexual assault is understood—from an offence that is committed forcibly and against the will of another person to an offence against a person’s agency’.[146]

25.82 Professor Patricia Easteal considered that a definition of consent based on free and voluntary agreement recognises the difficulty of proving lack of consent in the context of sexual assault by a partner.[147] Jenny’s Place Women and Children Refuge supported the proposal and considered that uniformity across all jurisdictions in relation to the definition of consent would provide ‘a clear standard and statement of the law that can be used to educate the community, and in particular victims of sexual assault’.[148]

25.83 Some stakeholders expressed concerns that the Consultation Paper proposal gives rise to issues of interpretation that may cause greater uncertainty about the law and does not appropriately reflect the reality of sexual interactions—which are best conceived as a spectrum from consensual sex to criminal behaviour.[149]

Commissions’ views

25.84 The Commissions support the adoption of a statutory definition of consent across all Australian jurisdictions. In taking this view, the Commissions are informed by the MCCOC’s discussion of the relative merits of a statutory or common law definition of consent.[150]

25.85 As discussed above, the Commonwealth, NSW, South Australia and the Northern Territory have already adopted ‘free and voluntary agreement’ as the current statutory definition of consent.[151] That definition is also consistent with the Model Criminal Code. Few stakeholders have expressed reservations about the adoption of a statutory definition of consent.[152]

25.86 The Commissions agree that a definition based on agreement properly reflects the two objectives of sexual offences law: protecting the sexual autonomy and freedom of choice of adults; and reinforcing both positive and communicative understandings of consent through use of the term agreement.[153] A majority of stakeholders similarly considered that consent should be conceived as a positive state of mind.

25.87 To the extent that introducing the concept of ‘agreement’ to the definition of consent may give rise to interpretation issues and problems in practice, the Commissions consider that supplementing any legislative provision that defines consent with a provision that includes a list of circumstances where free agreement may not have been given will assist, in practice, to clarify the meaning and expression of ‘agreement’.

25.88 The legislative definition of consent sets the standard to inform the community about the boundaries of proscribed sexual behaviour. The Commissions acknowledge criticisms that legislation alone is too blunt a tool to effectively inform community understandings, attitudes and beliefs about appropriate sexual interactions, and for this reason suggest that law reform driven by communicative understandings of consent should be supported by community education.[154]

Recommendation 25–4 Federal, state and territory sexual offence provisions should include a statutory definition of consent based on the concept of free and voluntary agreement.

Circumstances where consent is vitiated

25.89 In every Australian jurisdiction, legislation prescribes some circumstances where consent to a sexual act is defined not to exist. If the prosecution proves the presence of such a circumstance in a particular case, consent is deemed to be vitiated, or the complainant is to be regarded as not consenting.[155]

25.90 Many of the circumstances prescribed are common to all Australian jurisdictions. There is, however, considerable variation in scope and approach. Some codify the position at common law;[156] others go beyond the common law position—rectifying anomalies, deficiencies or gaps.[157]

Use of force and threat of the use of force

25.91 In all jurisdictions, where force is used or threatened to be used against the complainant or another person there is deemed to be no consent.[158] The use of force or threatened use of force against another person is of particular relevance in the family violence context—for example, force or threats of force against children may be made to force the mother to agree to sexual intercourse.

25.92 Similarly, in some jurisdictions, there is no consent in circumstances of ‘fear of harm of any type’,[159] ‘fear of bodily harm’,[160] ‘threats of terror’,[161] and ‘reasonable fear of force’.[162] South Australia specifically provides that a ‘threat of the application of force’ may be express or implied.[163]

Intimidation, coercion, extortion, deceit or fraud

25.93 In a small number of jurisdictions, there is or may be no consent where agreement to engage in the sexual activity is obtained by intimidation,[164] coercive conduct,[165] extortion,[166] deceit[167] or fraud.[168]

Other threats

25.94 In South Australia, there is no consent when it is obtained because of ‘an express or implied threat to degrade, humiliate, disgrace or harass the person or some other person’.[169]

25.95 In the ACT, there is no consent where it is caused ‘by a threat to publicly humiliate or disgrace, or to physically or mentally harass, the person or another person’.[170]

25.96 Some jurisdictions seek to prescribe non-physical threats and acts as circumstances in which there is, or may be, no consent by including threats ‘that do not involve a threat of force’,[171] ‘of harm of any type’[172] or ‘of any kind’.[173]

Asleep, unconscious or affected by drugs

25.97 In NSW, Victoria, South Australia, Tasmania and the Northern Territory, there is no consent when the complainant is asleep or unconscious.[174]

25.98 In Victoria, South Australia, Tasmania and the Northern Territory, there is no consent where the complainant is so affected by alcohol or other drugs as ‘to be incapable of freely agreeing’ to the sexual activity.[175] In the ACT, the effect of alcohol or other drugs is less qualified; there is no consent if it is caused by ‘the effect of intoxicating liquor, a drug or anaesthetic’.[176] In NSW, there may be no consent where a complainant was ‘substantially intoxicated by alcohol or any drug’.[177] This formulation adopts the view expressed in the report of the Criminal Justice Sexual Offences Taskforce that the degree of intoxication and whether it was such that a person was ‘unable to consent’ are matters for the jury.[178]

Mistaken identity

25.99 In all jurisdictions—except Western Australia[179]—there is no consent where the complainant is mistaken as to the identity of the person with whom he or she has engaged in sexual activity.[180] In addition, NSW provides that there is no consent where the complainant mistakenly believed that he or she was married to the person.[181]

Mistaken about the sexual nature of the act

25.100 In Victoria, South Australia, Tasmania and the Northern Territory there is no consent where the person agreed or submitted to sexual activity being mistaken about the sexual nature of the act.[182] Other specific factors in this category include:

  • in NSW, Victoria and the Northern Territory—mistaken belief that sexual intercourse is for medical or hygienic purposes;[183] and

  • in NSW and Queensland—agreeing or submitting to an act because of false or fraudulent representations about the nature or purposes of the act.[184]

Capacity to understand nature of the act

25.101 Most jurisdictions prescribe that there is no consent where the person who has agreed or submitted to the sexual act does not have the capacity to understand the sexual nature of the act.[185] The question of capacity is part of the Queensland definition of consent.[186]

Abuse of position of authority or trust

25.102 There is no consent when the accused person is in a position of authority or trust over the complainant in Queensland, Tasmania and the ACT.[187] There may be no consent where the accused has abused a ‘position of authority or trust’ in NSW.[188]

25.103 In addition, the Crimes Act 1900 (NSW) specifies that consent is not a defence to a range of sexual offences occurring within relationships of authority or trust. For example, it is an offence for a person who is ‘responsible for the care’ of a person with a cognitive impairment to have sexual intercourse with that person, and consent is not a defence.[189]

Unlawful detention

25.104 In most jurisdictions a person unlawfully detained does not consent to sexual activity.[190]

Communicating consent

25.105 Tasmania is the only jurisdiction in which there is no consent in the absence of verbal or physical communication as to free agreement.[191] In other jurisdictions, such as Victoria, the implications of communicating consent are dealt with by directions to the jury.[192]

Consultation Paper

25.106 In the Consultation Paper, the Commissions proposed that federal, state and territory sexual offences legislation should prescribe a non-exhaustive list of circumstances where consent may be vitiated—that is, made legally invalid or defective. The proposal stated that the circumstances ‘need not automatically negate consent, but the circumstances must in some way be recognised as vitiating consent’.

25.107 The proposal stated that, at a minimum, the non-exhaustive list of vitiating factors should include:

  • 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;

  • the actual use of force, threatened use of force against the complainant or another person, which need not involve physical violence or physical harm;

  • unlawful detention;

  • mistaken identity and mistakes as to the nature of the act (including mistakes generated by the fraud or deceit of the accused); and

  • any position of authority or power, intimidation or coercive conduct.[193]

25.108 The Commissions also asked to what extent the circumstances vitiating consent set out in current legislation are appropriate to sexual assault committed in a family violence context, and whether any amendments are required to draw attention to the coercive environment created by family violence, or whether the current provisions are sufficient.[194]

Submissions and consultations

25.109 Stakeholders generally supported the proposal. There was near unanimous support from stakeholders for the idea that legislation should prescribe a non-exhaustive list of circumstances in which there may not be consent.[195] Points of difference arose, however, in respect to the legal effect of the existence of a prescribed circumstance—that is, whether in the circumstances prescribed consent is automatically negated or may be negated—and the adequacy of the proposed circumstances.

25.110 AIFS commented that a non-exhaustive list of circumstances where there can be no consent is an important step to support the conception of consent as ‘free agreement’.[196] Legal Aid NSW agreed this is consistent with a communicative model of consent, but argued that the existence of a prescribed circumstance should give rise to a rebuttal presumption of no consent.[197] The Law Council of Australia (the Law Council) considered the Consultation Paper proposal to be ‘internally inconsistent’[198] and opposed it to the extent that it attempted to specify circumstances in which the tribunal of fact must find there is no consent. The Law Council did not object, however, to a list of circumstances that would be ‘material’ to a finding of absence of consent.[199]

25.111 Stakeholders expressed a range of views about the circumstances proposed to be specified. In relation to threats of force, NASASV and the Canberra Rape Crisis Centre submitted that the legislation should prescribe ‘implied threats of use of force’ as a relevant circumstance.[200]

25.112 Other stakeholders provided anecdotal evidence suggesting the importance of including threats against others as a circumstance where there is no consent—especially as some women’s partners threaten to abuse the children if the woman does not comply with her partner’s demands.[201]

25.113 Women’s Legal Service Queensland considered that the circumstance of ‘any position of authority or power, intimidation or coercive conduct’ would cover most sexual assault perpetrated in a family violence context.[202] NASASV suggested that legislation should also provide illustrative examples of such circumstances; and that the circumstance should be modified so as to capture any person in a position of authority or trust.[203]

25.114 Stakeholders emphasised that the issue of consent in the context of family violence and intimate relationships is complex; and that complexity is magnified where there is a history of violence and coerced ‘consent’.[204] The disjunction between the criminal justice system’s focus on isolated incidents, as opposed to a pattern or history of family violence, was identified as a particular challenge in proving lack of consent.[205]

25.115 Professor Patricia Easteal referred to research that identified four types of coercion in ‘wife rape’: social coercion, interpersonal coercion, threat of physical force and physical force. She noted that the literature suggests victims of sexual assault by an intimate partner ‘may experience a combination of these types of coercion, and the nature of the coercion may change over the course of the relationship, in the context of changing abuse patterns’.[206]

25.116 Stakeholders had different views about how legislation can best address these realities. Easteal argued that vitiation of consent needs to be defined specifically to include the type of intimidation that can be generated in a marital or intimate relationship.[207]

25.117 Some stakeholders suggested that legislation should either prescribe family violence as a circumstance where there is no consent, or recognise family violence as an environment characterised by threats of force or terror and prescribe that there is no consent where it is obtained by such threats.[208] Others emphasised that the family violence context is such that actual threats or coercive behaviour need not be immediately present to affect the validity of consent and that the prescribed circumstances should refer to a history of force and intimidation.[209] Rather than recognising the coercive nature of family violence as a circumstance affecting the validity of consent, the Magistrates’ Court and Children’s Court of Victoria and Professor Julie Stubbs considered that this issue should be dealt with as part of an objects clause to assist in the interpretation of the relevant provisions.[210]

25.118 Stakeholders also suggested that the circumstances vitiating consent set out in the Commissions’ proposal should be expanded to include:

  • economic abuse;[211]

  • where consent is purported to be given by persons with a cognitive impairment to sexual activity with a carer;[212]

  • fear of force or fear of harm of any type;[213]

  • threats to harm animals;[214] and

  • threats to damage property.[215]

Commissions’ views

25.119 Identifying the circumstances where there can be no consent, and where there may be no consent, as determined by the jury, has been a key concern of law reform in this area.[216]

25.120 The approach to circumstances vitiating consent varies across Australia. The ACT identifies the most circumstances and Western Australia the least. The Victorian approach is similar to that recommended by the MCCOC.[217] NSW is unique in separately specifying circumstances where there: (a) can be no consent; (b) may be no consent in the circumstances of the case—which is a question for the jury to decide.[218]

25.121 The Commissions’ view remains that, at a minimum, federal, state and territory legislation should recognise certain specified circumstances as ones where consent may be vitiated. The recommendation below intentionally leaves it open to the Commonwealth, state and territory parliaments to decide whether particular circumstances should be considered as automatically negating consent. The list of circumstances is non-exhaustive, as is presently the case in all Australian jurisdictions. This allows juries to find, on the evidence, that there was no consent, even if a case does not fall within one of the listed circumstances.[219]

25.122 The recommendation below incorporates minor changes of wording from the proposal, including to refer to abuse of a position ‘of authority or trust’; and to threats against the ‘complainant or any other person’—better reflecting circumstances that may arise in a family violence context.

Recommendation 25–5 Federal, state and territory sexual offence provisions should set out a non-exhaustive list of circumstances that may vitiate consent including, at a minimum:

(a) 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;

(b) where a person submits because of force, or fear of force, against the complainant or another person;

(c) where a person submits because of fear of harm of any type against the complainant or another person;

(d) unlawful detention;

(e) mistaken identity and mistakes as to the nature of the act (including mistakes generated by the fraud or deceit of the accused);

(f) abuse of a position of authority or trust; and

(g) intimidating or coercive conduct, or other threat, that does not necessarily involve a threat of force, against the complainant or another person.

The fault element

25.123 The discussion below focuses on the fault elements[220] of sexual offences and the relationship between fault and lack of consent.

25.124 The penetrative sexual offence, or ‘rape’, comprises physical elements and fault elements. In all jurisdictions, the physical elements of the offence require the prosecution to prove that sexual penetration took place without the consent of the complainant.

25.125 The fault element—the ‘state of mind of the accused which must be established beyond reasonable doubt before the accused can be convicted’—[221] differs among Australian jurisdictions.

25.126 In Queensland, Western Australia and Tasmania, the fault element for rape is merely an intention to have intercourse.[222] In the remaining jurisdictions, the fault element for rape is both an intention to have intercourse and:

  • in NSW, the ACT and the NT, that the accused ‘knows that the other person does not consent’ or is ‘reckless as to whether the other person consents’;[223]

  • in Victoria, that the accused commits the act ‘while being aware that the person is not consenting or might not be consenting’ or ‘while not giving any thought to whether the person is not consenting or might not be consenting’;[224] and

  • in South Australia, that the accused ‘knows, or is recklessly indifferent to, the fact that the other person does not so consent’.[225]

25.127 It is these additional fault elements—knowledge and recklessness—that have raised the most contentious questions for law reform,[226]both as elements of offences and in the context of the defences based on an accused’s ‘reasonable belief’ or ‘honest and reasonable belief’ that the complainant was consenting.

25.128 In all jurisdictions except NSW, the accused may raise a defence that he or she honestly believed that the complainant was consenting. In Victoria, South Australia, and the ACT, where this defence is under the common law, the honest belief in consent need not be reasonable.[227] In Queensland, Western Australia, Tasmania, and the Northern Territory, the belief must be both honest and reasonable.[228]

25.129 Defences of mistaken belief in consent, or honest and reasonable belief in consent, are no longer relevant under the NSW legislation. Instead, the Crimes Act 1900 (NSW) definition of consent refers to the accused’s knowledge about consent in such a way that it is relevant to that legislation’s definition of consent. [229]

Recklessness

25.130 The concept of ‘recklessness’, in the context of sexual offences, differs substantially among Australian jurisdictions.

25.131 Recklessness is not defined in the NSW legislation, but may be established where the accused:

  • ‘realised the possibility that the complainant was not consenting’ but went ahead regardless;[230] or

  • ‘failed to consider whether or not the complainant was consenting … notwithstanding the risk that the complainant was not consenting would have been obvious to someone with the accused’s mental capacity if they had turned his or her mind to it’.[231]

25.132 Both of these kinds of recklessness—‘advertent’ or ‘non-advertent’ recklessness respectively—are ‘wholly subjective’.[232]

25.133 By criminalising ‘non-advertent’ recklessness, NSW is said to ‘go further’ than other jurisdictions.[233] The policy reasons why non-advertent recklessness should be included were expressed by Kirby P in R v Kitchener:

To criminalise conscious advertence to the possibility of non-consent, but to excuse the reckless failure of the accused to give a moment’s thought to that possibility, is self-evidently unacceptable. In the hierarchy of wrong-doing, such total indifference to the consent of a person to have sexual intercourse is plainly reckless, at least in our society today … Such a law would simply reaffirm the view that our criminal law, at crucial moments, fails to provide principled protection to the victims of unwanted sexual intercourse, most of whom are women.[234]

25.134 In South Australia, ‘recklessly indifferent’ is defined in the following way:

a person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she—

(a) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or

(b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or

(c) does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed.[235]

25.135 The Victorian provision refers to a person who did not give ‘any thought’ as to whether or not the complainant was consenting.[236] This provision addresses the position in R v Ev Costa, where it was held that recklessness required conscious advertence to the question of whether the complainant was consenting.[237]

Defence of ‘honest belief’

25.136 Fault elements, such as knowledge and recklessness, are elements of some defences. That an accused may be acquitted on the basis of an honest, but unreasonable, belief or mistake in consent was established by the House of Lords in DPP v Morgan.[238] In that case three men were told by the husband of the complainant that they could have sexual intercourse with her and that any resistance (physical or verbal) she made was pretence, with the husband suggesting that his wife found such behaviour exciting. The men proceeded to have intercourse with the woman and were subsequently charged with and found guilty of rape. The men appealed on the basis that they held an honest belief that the woman was consenting. The convictions were ultimately upheld on the basis that a jury ‘would have been extremely unlikely … [to have] accepted this defence on the facts of the case’.[239]

25.137 The significance of Morgan is that a majority of the House of Lords held that where the accused held an honest, albeit unreasonable belief, that the complainant was consenting to the sexual intercourse, the offence of rape was not committed:

to insist that a belief must be reasonable to excuse it is to insist that the accused is to be found guilty of intending to do that which in truth he did not intend to do, or that his state of mind although innocent of evil intent, can convict him if it be honest but not rational.[240]

25.138 The decision in Morgan was controversial and generated considerable debate. It led to the creation in 1975 of an Advisory Group on the Law of Rape,[241] which concluded that the test was correct but that there should be clarification of the significance of ‘reasonableness’ in the legislation.[242]

25.139 The defence of honest belief is currently available to accused persons in Victoria, South Australia, and the ACT in respect of the offence of rape or sexual intercourse without consent.[243] In Victoria, judges must direct juries to consider whether an accused’s belief was reasonable in all the circumstances, including reference to ‘whether the accused took any steps to ascertain whether the complainant was consenting’.[244]

Defence of ‘honest and reasonable belief’

25.140 Generally, where the statutory defence of honest and reasonable belief is available to an accused, the question of whether a defence is available on the facts of a case is answered by a two-stage inquiry: (a) did the accused believe that the complainant was consenting; and (b) if so, was that belief reasonable?[245]

25.141 The Tasmanian Criminal Code, however, articulates a defence specific to mistake as to consent. This defence articulates that an accused’s mistaken belief about the existence of consent is not honest or reasonable if the accused:

(a) was in a state of self-induced intoxication and the mistake was not one which the accused would have made if not intoxicated; or

(b) was reckless as to whether or not the complainant consented; or

(c) did not take reasonable steps, in the circumstances known to him or her at the time of the offence, to ascertain that the complainant was consenting to the act.[246]

New South Wales approach

25.142 Until recently, the defence of honest belief that the complainant consented was available in NSW—a common law jurisdiction. Substantive changes in relation to consent were enacted in 2007.[247] Section 61HA(3) of the Crimes Act 1900 (NSW) now provides:

A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:

(a) the person knows that the other person does not consent to the sexual intercourse, or

(b) the person is reckless as to whether the other person consents to the sexual intercourse, or

(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:

(d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but

(e) not including any self-induced intoxication of the person.

Subjective and objective fault elements

25.143 Subjective fault elements, such as recklessness, knowledge and honest belief,[248] emphasise the perspective of a particular defendant. Objective elements, such as reasonableness, focus on ‘the actual consequences of an accused’s conduct or the actual circumstances under which the conduct occurred rather than on the accused’s mental state during the performance of the conduct’.[249] In this context, ‘honest and reasonable belief’ incorporates both a subjective and objective element.

25.144 The arguments for and against subjective fault elements have been canvassed in reports by the MCCOC and the VLRC.[250] The main arguments in support of subjective fault elements include the following.

  • Consistency with fundamental notions of criminal responsibility—for example, the notion that the criminal law, particularly in relation to serious offences, should not impose guilt where the person did not knowingly transgress the law.[251]

  • Avoiding the practical difficulties of formulating objective standards—for example, the ‘reasonable person’ test raises issues in relation to whether the jury ought to consider what they would have done in the situation or whether the standard is that of a ‘reasonable man’. In addition, questions arise in relation to the qualities and attitudes about men and women that are ascribed to a ‘reasonable person’.[252]

  • The view that the trier of fact, in determining whether a subjective mental state existed, may take into account the reasonableness of the mental state.[253]

  • In respect of a defendant’s mistaken belief—the focus of only a small number of rape trials—an objective element would ‘jeopardise the principles of criminal responsibility without ensuring that a higher proportion of people who are actually guilty of rape are convicted’.[254]

25.145 The main arguments in support of objective fault elements include the following.[255]

  • Subjective fault elements reinforce myths about men, women and children and sexuality—in particular as to whether sexual access is always available and expectations about how consent is conveyed.[256]

  • An objective test is in accordance with the communicative model of consent established in the definitional frameworks.[257]

  • A defendant should not ‘be able to avoid culpability’ on the basis that ‘he did not give any thought at all as to whether the complainant was consenting or not’.[258]

  • The law ‘ought to impose a higher standard of care in sexual circumstances’,[259] because ‘it is possible for a man to ascertain whether a woman is consenting or not with minimal effort’;[260] and to have sexual intercourse with a woman without her consent is ‘to do her great harm’.[261]

  • Subjective tests are difficult because they contain a ‘double subjective element’: that is, both the complainant’s (was she consenting?) and defendant’s (did he know she was not consenting?) states of mind.[262] This difficulty is compounded because the jury often must make its decision on the basis of the competing evidence of the complainant and the accused.[263]

Consultation Paper

25.146 In the Consultation Paper, the Commissions proposed that federal, state and territory sexual offences legislation should adopt legislation based on the NSW approach to the fault element. That is, 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. Further, 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.[264]

25.147 To better determine the impact of the defence of honest belief on complainants who have, or have had, an intimate relationship with the accused, the Commissions asked whether an honest belief in consent is more likely to be raised in cases where the complainant has or has had an intimate relationship with the accused; whether the insertion of an objective element would assist in such cases; and whether any other measures are required to clarify or restrict the defence of honest belief in such cases.[265]

Submissions and consultations

25.148 Some stakeholders expressed support for the proposal but did not give reasons for their view.[266] Others supported the proposal, expressly or impliedly, by reason of the objective elements.[267] One stakeholder commented that, while there needs to be an objective element, even objective elements are not immune to bias and prejudice about sexuality, including the sexuality of certain groups, such as Indigenous women.[268]

25.149 Some stakeholders noted than an objective element would make it easier for the prosecution to discharge the onus of proof.[269] Jenny’s Place Women and Children Refuge stated that the legislation should require proof by the accused of the steps taken to ascertain whether the complainant was consenting, as recommended by the United Nations Division for the Advancement of Women.[270]

25.150 The Magistrates’ Court and Children’s Court of Victoria did not express an opinion about the proposal, but noted that:

a communicative model of consent … can be difficult to reconcile with a purely subjective mental element. There is a perception that reconciling these elements makes it extremely difficult to give comprehensible jury directions.[271]

25.151 AIFS commented that legislative measures that require a belief in consent to be reasonable ‘set up a situation in which the victim’s behaviour can be used as evidence … [of] the defendant’s state of mind at the time’ and have ‘frequently resulted in the defence counsel drawing on information about the complainant’s sexual history, or to appeal to rape myths in order to show that the defendant could have held that belief’.[272]

25.152 The Law Council and the Law Society of NSW strongly opposed the proposal to the extent that it ‘provides for a single offence where alternative subjective and objective fault elements are applicable’.[273] The Law Council stated that, under the proposal:

a person who knows that consent is absent is convicted of the same offence and liable to the same maximum penalty as the person who honestly believes that there is consent but is found to have been negligent (that is, the tribunal of fact is satisfied that the person did not have ‘reasonable grounds’ for that belief).[274]

25.153 Both organisations criticised the approach because a negligent offender is not equally culpable as a deliberate offender and should not be liable to the same maximum penalty.[275] This, it was said, creates a situation where, after a jury trial resulting in a conviction, the sentencing judge will not know the basis upon which the jury found the accused guilty and could proceed to sentence on a more serious basis than in fact determined by the jury.[276]

25.154 In the Law Council’s view, if an objective fault element is to be adopted, ‘it must be in a discrete offence with a considerably lower maximum penalty than the penalties currently applicable to intentional or reckless sexual assault’.[277] The Law Society of NSW also submitted that:

  • sexual assault is a serious crime with severe maximum penalties and it should be reserved for behaviour that is ‘so seriously wrong as to be deserving of criminal punishment’;

  • although there are negligence offences with substantial penalties within the criminal law, this is the exception, rather than the rule with the vast majority of criminal offences requiring a ‘guilty mind’; and

  • an accused who lacks the capacity of a hypothetical reasonable person (for example, an accused with a cognitive impairment) and who mistakenly believes that consent is present should not be held to the standard of people who have full capacity.[278]

25.155 Some stakeholders considered the proposal’s treatment of the self-induced intoxication of the accused to be problematic. Generally stakeholders agreed that self-induced intoxication is irrelevant to the question of whether a belief in consent is ‘reasonable’, but argued that it is relevant to the question of whether the accused ‘honestly’ held that belief:[279]

If the person does not know that consent is absent nor is reckless in that regard, then the person should not be found guilty of such an offence. It makes no difference whatsoever that the person was intoxicated. The necessary guilty mind is absent. There is no justification whatsoever for imposing liability for such a serious offence on the basis that, if the person had not been intoxicated, he or she would have known that consent was absent.[280]

25.156 NTLAC observed that the proposal’s treatment of self-induced intoxication is ‘out of kilter with patterns of actual sexual conduct (including misconduct) in the Northern Territory’ and favoured the retention of the current Northern Territory fault provisions.[281]

25.157 The Canberra Rape Crisis Centre also preferred an alternative approach, namely, making available the defence of honest and reasonable belief in all jurisdictions.[282]

25.158 There is some anecdotal evidence that the defence of honest belief is more likely to be raised in cases where there has been an intimate relationship[283] and may be ‘treated as more credible’ in the family violence context than other contexts.[284] Some stakeholders considered that other measures are required to clarify or restrict the defence of honest belief in this context. Women’s Legal Services NSW, for example, considered that ‘community education is a key aspect of ensuring the mutuality of consent in adult sexual relations’.[285]

Commissions’ views

25.159 ‘Honest belief’ is rarely the main or predominant issue in sexual offence proceedings, but the centrality of consent to sexual assault trials means that it invariably plays some role in how the legal system, its key players and jury members, understand and approach consent.[286] For this and other reasons, the VLRC recommended that the fault element should be changed to ensure that an accused takes reasonable steps to ascertain that the complainant was consenting. In addition, the VLRC recommended that a mandatory jury direction on consent should be required by legislation.[287] Only the latter of these recommendations has been implemented.[288]

25.160 In contrast, the MCCOC recommended that criminal liability for sexual offences should be determined on the basis of the subjective mental state of the accused. That is, that an accused should not be found guilty of sexual penetration without consent ‘unless the prosecution proves’ that the accused:

  • knew that the victim was not consenting;

  • was ‘reckless to the absence of consent’; or

  • ‘failed to give any thought to the question of consent’.[289]

25.161 As such, the MCCOC approach permits an accused to rely on an honest, albeit unreasonable, belief in consent. Its reasons for this were based on the fact that the extent to which such a belief is unreasonable goes to the question of whether it has been established as a genuine or honest belief in consent. The MCCOC, like the VLRC, recommended that juries be directed in relation to whether the mistake or belief in consent was reasonable in all the circumstances.[290]

25.162 In the Commissions’ view, the issues are best addressed by legislation providing that it is a defence to the charge of rape that the accused held an honest and reasonable belief that the complainant was consenting. In addition, legislation should require that judges direct juries in relation to the evidence presented about that belief and whether, as part of the honesty requirement, the accused took any steps to ascertain whether consent was present.[291]

25.163 In forming this view, the Commissions have sought to promote the communicative model of consent and reconcile it with the general proposition of law that the onus of proof in criminal trials lies with the prosecution.

25.164 The insertion of an objective fault element, or the modification of the subjective fault element by requiring reasonable steps to ascertain consent, has also been adopted by various overseas jurisdictions, for example, in New Zealand,[292] the United Kingdom[293] and Canada.[294] In the United Kingdom, the fault element is simply that a person commits rape when ‘A does not reasonably believe that B consents’.[295]

25.165 The recommendation is consistent with the basic position in the Australian criminal code jurisdictions.[296] For complainants in non-code jurisdictions, it will introduce a second standard to be met by an accused who seeks to avoid criminal culpability because of their belief that the complainant consented. The introduction of an objective fault element discourages the assumption of consent, including in the context of a previous consensual relationship or family violence.[297]

25.166 In relation to the intoxication of the accused, the Commissions’ view is that intoxication is relevant to the honesty of the accused’s belief. The effect of intoxication on the accused, however, should not be a relevant factor in assessing the reasonableness of the accused’s belief.

Recommendation 25–6 Federal, state and territory sexual assault provisions should provide that it is a defence to the charge of ‘rape’ that the accused held an honest and reasonable belief that the complainant was consenting to the sexual penetration.

[133] National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009), 107–109.

[134] Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 33, 35. See also: Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005), 34. A definition of consent was subsequently inserted in the NSW legislation.

[135] Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 35–37.

[136] Crimes Act 1900 (ACT) s 67 lists a range of circumstances in which there is no consent. In 2001, the ACT Law Reform Commission recommended the enactment of a statutory definition, which was supported by the ACT Government: ACT Law Reform Commission, Sexual Offences, Report No 17 (2001), 71.

[137] Crimes Act 1958 (Vic) s 36; Criminal Code (Tas) s 2A(1).

[138] Criminal Code (Cth) s 192(1); Crimes Act 1900 (NSW) s 61HA(2); Criminal Law Consolidation Act 1935 (SA) s 46(2); Criminal Code (NT) s 192(1). See also Criminal Code (Cth) ss 268.14, 268.19, 268.59, 268.64, 268.82, 268.87. As these are all sexual violence or rape offences in the context of war crimes or crimes against humanity, they are not discussed in this chapter.

[139] Criminal Code (Qld) s 348(1); Criminal Code (WA) s 319(2). Criminal Code (Qld) s 348(1) further provides that consent means ‘consent freely and voluntarily given by a person with the cognitive capacity to give the consent’. See also Michael v Western Australia (2008) 183 A Crim R 348 for a discussion of the statutory definitions of consent and the role of deceit and fraud.

[140] Continuation is not explicitly addressed in Queensland legislation but the ‘weight of authority supports treating the continuation of sexual intercourse as satisfying the physical act required for a charge of rape’: Thomson Reuters, The Laws of Australia, vol 10, Criminal Offences, 10.3, [190].

[141] United Nations Department of Economic and Social Affairs Division for the Advancement of Women, Handbook for Legislation on Violence Against Women (2009), 27. See also discussion of this approach in Time for Action, 108, n 183 referring to earlier work by the Division of the Advancement of Women. The latter component of this definition regarding the steps taken by the accused is discussed below.

[142] Sexual Offences Act 2003 (UK) s 74.

[143] Criminal Law Review Division, NSW Attorney General’s Department, The Law of Consent and Sexual Assault, Discussion Paper (2007), 12.

[144] Consultation Paper, Proposal 16–2. Alternative formulations of the penetrative sexual offence, which seek to focus the offence away from issues of consent and instead focus on the circumstances under which penetration took place, are beyond the scope of the current Inquiry. These are discussed in the Consultation Paper, [16.65]–[16.68].

[145] Australian Institute of Family Studies, Submission FV 222, 2 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010; N Ross, Submission FV 129, 21 June 2010; Jenny’s Place Women and Children Refuge, Submission FV 54, 28 May 2010; P Easteal, Submission FV 38, 13 May 2010.

[146] Australian Institute of Family Studies, Submission FV 222, 2 July 2010.

[147] P Easteal, Submission FV 38, 13 May 2010.

[148] Jenny’s Place Women and Children Refuge, Submission FV 54, 28 May 2010.

[149] North Australian Aboriginal Justice Agency, Submission FV 194, 25 June 2010; C Pragnell, Submission FV 70, 2 June 2010.

[150] Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 41–47.

[151] Criminal Code (Cth) s 192(1); Crimes Act 1900 (NSW) s 61HA(2); Criminal Law Consolidation Act 1935 (SA) s 46(2); Criminal Code (NT) s 192(1).

[152] Law Society of New South Wales, Submission FV 205, 30 June 2010.

[153] Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 43.

[154] For example, education and training about the myths, facts and law in relation to sexual assault could be delivered to school students, teachers, parents and carers, social workers, guidance officers, nurses, doctors, police recruits and journalists.

[155] Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 39.

[156] Ibid, 43.

[157] See, eg, the discussion in Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005), 36; Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 43–49. For a general discussion of the common law’s resistance to recognising that consent may be vitiated by fraud or mistake and hence the introduction of legislative provisions see Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005), 39–40.

[158] Crimes Act 1900 (NSW) s 61HA(4)(c); Crimes Act 1958 (Vic) s 36(a); Criminal Code (Qld) s 348(2)(a); Criminal Code (WA) s 319(2)(a); Criminal Law Consolidation Act 1935 (SA) s 46(3)(a)(i); Criminal Code (Tas) 2A(2)(b); Crimes Act 1900 (ACT) s 67(1)(a)–(c); Criminal Code (NT) s 192 (2)(a). In the ACT, this other person is required to be ‘present or nearby’—no other jurisdiction has this qualification around the use or threat of the use of force to a person other than the complainant. See also Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 38, app 2, cl 5.2.3.

[159] Crimes Act 1958 (Vic) s 36(b); Criminal Code (NT) s 192(2)(a).

[160] Criminal Code (Qld) s 348(2)(c).

[161] Crimes Act 1900 (NSW) s 61HA(4)(c).

[162] Criminal Code (Tas) s 2A(2)(b).

[163] Criminal Law Consolidation Act 1935 (SA) s 46(3)(a)(i).

[164] Criminal Code (Qld) s 348(2)(b); Criminal Code (WA) s 319(2)(a). See also Crimes Act 1900 (NSW) s 61HA(6)(b): ‘if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force’.

[165] Crimes Act 1900 (NSW) s 61HA(6)(b).

[166] Crimes Act 1900 (ACT) s 67(1)(c), including extortion against another person.

[167] Criminal Code (WA) s 319(2)(a).

[168] Ibid s 319(2)(a); Criminal Code (Tas) s 2A(f); Crimes Act 1900 (ACT) s 67(1)(g).

[169] Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008 (SA) s 46(3)(a)(ii).

[170] Crimes Act 1900 (ACT) s 67(1)(d).

[171] Crimes Act 1900 (NSW) s 61HA(6)(b).

[172] Crimes Act 1958 (Vic) s 36(b), which covers a threat against another person; Criminal Code (NT) s 192(2)(a). See also Criminal Code (Qld) s 348(2)(c), which includes ‘fear of bodily’ harm.

[173] Criminal Code (Tas) s 2A(2)(c).

[174] In some jurisdictions, being asleep or unconscious is specified on its own as a circumstance that negates consent: Crimes Act 1900 (NSW) s 61HA(4)(b); Criminal Law Consolidation Act 1935 (SA) s 46(3)(c). These jurisdictions deal with the lack of consent in the context of the effect or alcohol and other drugs separately. Other jurisdictions specify being asleep or unconscious along with the effect of alcohol and other drugs: Crimes Act 1958 (Vic) s 36(d); Criminal Code (Tas) s 2A(h); Criminal Code (NT) s 192(2)(c). See also Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), cl 5.2.3, 38.

[175] Crimes Act 1958 (Vic) s 36(d); Criminal Law Consolidation Act 1935 (SA) s 46(3)(d); Criminal Code (Tas) s 2A(2)(h); Criminal Code (NT) s 192(2)(c). See also Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 38, app 2, cl 5.2.3.

[176] Crimes Act 1900 (ACT) s 67(1)(e).

[177] Crimes Act 1900 (NSW) s 61HA(6)(a).

[178] Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005), 37.

[179] Western Australia does however specify that consent is negated where it has been obtained by ‘deceit, or any fraudulent means’: Criminal Code (WA) s 319(2)(a).

[180] Crimes Act 1900 (NSW) s 61HA(5)(b); Crimes Act 1958 (Vic) s 36(f); Criminal Code (Qld) s 348(2)(f); Criminal Law Consolidation Act (SA) s 46(3)(g); Criminal Code (Tas) s 2A(2)(g); Crimes Act 1900 (ACT) s 67(1)(f); Criminal Code (NT) s 192(e).

[181] Crimes Act 1900 (NSW) s 61HA(5)(b). See also Criminal Code (Qld) s 348(2)(f) which specifies that there is no consent where the person agrees to the sexual activity when they had the ‘mistaken belief induced by the accused that they were sexual partners’.

[182] Crimes Act 1958 (Vic) s 36(f); Criminal Law Consolidation Act 1935 (SA) s 46(3)(h); Criminal Code (Tas) s 2A(g), where the complainant must have been ‘reasonably mistaken about the nature or purpose of the act’; Criminal Code (NT) s 192(2)(e). See also Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), cl 5.2.3, 38.

[183] Crimes Act 1900 (NSW) s 61HA (5)(c); Crimes Act 1958 (Vic) s 36(g); Criminal Code (NT) s 192(1)(f).

[184] Crimes Act 1900 (NSW) s 61HA(5)(c); Criminal Code (Qld) s 348(2)(e).

[185] Crimes Act 1900 (NSW) s 61HA(4)(a); Crimes Act 1958 (Vic) s 36(e); Criminal Law Consolidation Act 1935 (SA) s 46(f); Criminal Code (Tas) s 2A(2)(i); Crimes Act 1900 (ACT) s 67(1)(i); Criminal Code (NT) s 192(2)(d). See also MCCOC, cl 5.2.3, 38. Crimes Act 1900 (NSW) s 61HA(4)(a) specifically provides that a person does not consent to sexual intercourse where that person ‘does not have the capacity to consent to the sexual intercourse, including because of age or cognitive capacity’.

[186] Criminal Code (Qld) s 348(1).

[187] Ibid s 348(2)(d); Criminal Code (Tas) s 2A(2)(e); Crimes Act 1900 (ACT) s 67(1)(h).

[188] Crimes Act 1900 (NSW) s 61HA(6)(c).

[189] Ibid s 66F(2), (5). The penalty applicable for this offence, a maximum of 10 years imprisonment, is less than that for sexual assault without consent (14 years).

[190] Ibid s 61HA(4)(d); Crimes Act 1958 (Vic) s 36(c); Criminal Law Consolidation Act 1935 (SA) s 46(3)(b); Criminal Code (Tas) s 2a(2)(d); Crimes Act 1900 (ACT) s 67(1)(j); Criminal Code (NT) s 192(2(b). See also Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), cl 5.2.3, 38.

[191] Criminal Code (Tas) s 2A(2)(a).

[192] See Crimes Act 1958 (Vic) s 37AA.

[193] Consultation Paper, Proposal 16­–3.

[194] Ibid, Question 16–6.

[195] Australian Institute of Family Studies, Submission FV 222, 2 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; Confidential, Submission FV 105, 6 June 2010; Jenny’s Place Women and Children Refuge, Submission FV 54, 28 May 2010; M Condon, Submission FV 45, 18 May 2010.

[196] Australian Institute of Family Studies, Submission FV 222, 2 July 2010.

[197] Legal Aid NSW, Submission FV 219, 1 July 2010.

[198] That is, because the proposal stated that legislation should provide a non-exhaustive list of ‘circumstances where there is no consent to sexual activity, or where consent is vitiated’ and that those circumstances ‘need not automatically negate consent’: Law Council of Australia, Submission FV 180, 25 June 2010. Also Queensland Law Society, Submission FV 178, 25 June 2010.

[199] Law Council of Australia, Submission FV 180, 25 June 2010. Also Queensland Law Society, Submission FV 178, 25 June 2010.

[200] National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010. As is the case under Criminal Law Consolidation Act 1935 (SA) s 46(3)(a)(i).

[201] Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

[202] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[203] National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010.

[204] P Easteal, Submission FV 38, 13 May 2010. Also National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

[205] Victims of Crime Assistance League Inc NSW, Submission FV 133, 21 June 2010; P Easteal, Submission FV 38, 13 May 2010.

[206] P Easteal, Submission FV 38, 13 May 2010.

[207] Ibid.

[208] Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Jenny’s Place Women and Children Refuge, Submission FV 54, 28 May 2010. As in Crimes Act 1900 (NSW) s 61HA(4)(c).

[209] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010.

[210] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; J Stubbs, Submission FV 186, 25 June 2010.

[211] National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010.

[212] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[213] Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; P Easteal, Submission FV 38, 13 May 2010.

[214] Confidential, Submission FV 69, 2 June 2010.

[215] Ibid.

[216] See, eg, discussion in Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 49. The MCCOC referred approvingly to the arguments made by Jennifer Temkin based around sexual choice and the recognition that some circumstances there remains choice, albeit unpalatable ones: T Temkin, ‘Towards a Modern Law of Rape’ (1982) 45 Modern Law Review 399, 411.

[217] Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 49. However, since the MCCOC report, NSW has legislated in a different way from other jurisdictions, as discussed below.

[218] Crimes Act 1900 (NSW) s 61HA(4)–(6).

[219] Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 41.

[220] Referred to as the ‘mental’ element in the Consultation Paper, [16.69]–[16.110].

[221] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [8.1].

[222] This is the only mental element required: Criminal Code (Qld) s 349; Criminal Code (WA) s 325; Criminal Code (Tas) s 13.

[223] Crimes Act 1900 (NSW) s 61HA(3); Crimes Act 1900 (ACT). Similar terminology to that set out in the text is used in the Northern Territory: Criminal Code (NT) s 192(4). In NSW, it is also sufficient if the accused has no reasonable grounds for believing that the other person consents to sexual intercourse: Crimes Act 1900 (NSW) s 61HA(3)(c).

[224] Crimes Act 1958 (Vic) s 38(2)(a).

[225] Criminal Law Consolidation Act 1935 (SA) s 48(1).

[226] See, eg, Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 67; Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005), 42–52; Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [8.6]–[8.36]; Office of the Director of Public Prosecutions (ACT) and Australian Federal Police, Responding to Sexual Assault: The Challenge of Change (2005), 214–216.

[227] Director of Public Prosecutions v Morgan [1976] AC.

[228] Criminal Code (Qld) s 24; Criminal Code (WA) s 24; Criminal Code (NT) s 32. See also Tasmania which has included recklessness within its treatment of a mistaken belief: Criminal Code (Tas) s 14A(1)(b). See discussion in Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 71; and Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [8.4].

[229] Crimes Act 1900 (NSW) s 61HA(3).

[230] Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005), 43. See also, R v Hemsley (1988) 36 A Crim R 334, 337–338; R v Murray (1987) 11 NSWLR 12, 15.

[231] Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005), 43. See also, R v Mitton (2002) 132 A Crim R 123; R v Tolmie (1995) 37 NSWLR 660; R v Kitchener (1993) 29 NSWLR 696, 697.

[232] Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005), 43. See also, Banditt v The Queen (2005) 224 CLR 262.

[233] Thomson Reuters, The Laws of Australia, vol 10, Criminal Offences, 10.3, [300].

[234] R v Kitchener (1993) 29 NSWLR 696, 697 (Kirby P). See also, R v Tolmie (1995) 37 NSWLR 660.

[235] Criminal Law Consolidation Act 1935 (SA) s 47. For a discussion of the significance of the accused being aware of the ‘possibility’ as opposed to the ‘probability’ that the other person might not be consenting to the act or has withdrawn consent to the act, see R v Egan (1985) 15 A Crim R 20.

[236] Crimes Act 1958 (Vic) s 38(2). This legislation is not consistent with the recommendations of the Victorian Law Reform Commission, Sexual Offences: Final Report (2004). See also, D Smith, ‘Reckless Rape in Victoria’ (2008) 32 Melbourne University Law Review 1007, 1008.

[237] R v Ev Costa [1996] VSC. cf R v Kitchener (1993) 29 NSWLR 696, where complete failure to consider or avert to consent was held sufficient to constitute recklessness.

[238] Director of Public Prosecutions v Morgan [1976] AC. In the Australian common law jurisdictions see: Banditt v The Queen (2005) 224 CLR 262; R v Brown [1975] 10 SASR 139. The decision in Banditt was made before the most recent legislative change in NSW, which has introduced an objective element. Morgan does not apply in the Code jurisdictions.

[239] Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 73.

[240] Director of Public Prosecutions v Morgan [1976] AC, 210 (Hailsham LJ).

[241] The Advisory Group became known as the Heilbron Committee.

[242] This recommendation was implemented in 1976, and was substantially superseded by later extensive reform of the law in the UK.

[243] See, eg, R v Brown [1975] 10 SASR 139 (decided before Morgan but reaching the same decision); Banditt v The Queen (2005) 224 CLR 262.

[244] Crimes Act 1958 (Vic) s 37AA. This approach was also recommended by Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 85.

[245] Criminal Code (Qld) s 24; Criminal Code (WA) s 24; Criminal Code (NT) s 32. See also Tasmania which has included recklessness within its treatment of a mistaken belief: Criminal Code (Tas) s 14A(1)(b). See also, Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 73.

[246] Criminal Code (Tas) s 14A.

[247] Crimes Amendment (Consent—Sexual Assault Offences) Act 2007 (NSW).

[248] See, Director of Public Prosecutions v Morgan [1976] AC, in relation to the classification of honest belief in consent as a subjective test.

[249] M Findlay, S Odgers and S Yeo, Australian Criminal Justice (2005), 15.

[250] Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 77–83; Victorian Law Reform Commission, Sexual Offences: Final Report (2004), Ch 8.

[251] Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 83.

[252] Ibid 77. See also, S Bronitt, ‘Rape and Lack of Consent’ (1992) 16 Criminal Law Journal 289, 305.

[253] Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 71. See also, Report of the Advisory Group on the Law of Rape HMSO, London (1975), 7.

[254] Victorian Law Reform Commission, Sexual Offences: Interim Report (2003), [7.91].

[255] See discussion in Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 79.

[256] The defence of honest belief ‘supports the attitude that a person is entitled to have sex, unless the other person actively indicates they do not wish to do so. This places the onus on a person approached for sex to indicate lack of consent, instead of requiring the initiator to ascertain whether the other person is consenting’: Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [8.7].

[257] Ibid, [8.7]; Victorian Law Reform Commission, Sexual Offences: Interim Report (2003) [7.94].

[258] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [8.11]. See, eg, the Victorian decision of R v Ev Costa [1996] VSC 27, compared to the position in NSW stated in R v Kitchener (1993) 29 NSWLR 696, which found that failure to consider or advert to consent at all is reckless.

[259] Victorian Law Reform Commission, Sexual Offences: Interim Report (2003), [7.98].

[260] J Tempkin, ‘The Limits of Reckless Rape’ ([1983] Criminal Law Review 5, 15–16.

[261] Ibid, 15–16.

[262] Victorian Law Reform Commission, Sexual Offences: Interim Report (2003) [7.99].

[263] Ibid, [7.99].

[264] Consultation Paper, Proposal 16–4.

[265] Ibid, Question 16­–7.

[266] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Confidential, Submission FV 130, 21 June 2010.

[267] Legal Aid NSW, Submission FV 219, 1 July 2010; National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Jenny’s Place Women and Children Refuge, Submission FV 54, 28 May 2010; M Condon, Submission FV 45, 18 May 2010. The NASASV supported the proposal as ‘a step forward for jurisdictions where the law does not currently require that belief there was consent be reasonable’ but also went further, arguing that criminal liability should turn on the question of whether or not there was consent and a mere intention to have intercourse.

[268] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010.

[269] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Jenny’s Place Women and Children Refuge, Submission FV 54, 28 May 2010; P Easteal, Submission FV 38, 13 May 2010.

[270] Jenny’s Place Women and Children Refuge, Submission FV 54, 28 May 2010 referring to United Nations Department of Economic and Social Affairs Division for the Advancement of Women, Handbook for Legislation on Violence Against Women (2009), 28.

[271] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[272] Australian Institute of Family Studies, Submission FV 222, 2 July 2010.

[273] Law Council of Australia, Submission FV 180, 25 June 2010. Also Law Society of New South Wales, Submission FV 205, 30 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010.

[274] Law Council of Australia, Submission FV 180, 25 June 2010. Also Queensland Law Society, Submission FV 178, 25 June 2010.

[275] Law Society of New South Wales, Submission FV 205, 30 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010. Also Queensland Law Society, Submission FV 178, 25 June 2010.

[276] Law Society of New South Wales, Submission FV 205, 30 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010. Also Queensland Law Society, Submission FV 178, 25 June 2010.

[277] Law Council of Australia, Submission FV 180, 25 June 2010.

[278] Law Society of New South Wales, Submission FV 205, 30 June 2010.

[279] Ibid; Law Council of Australia, Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Northern Territory Legal Aid Commission, Submission FV 122, 16 June 2010; NSW Legal Assistance Forum, Consultation, Sydney, 10 May 2010. Also Law Council of Australia, Submission FV 180, 25 June 2010; Northern Territory Legal Aid Commission, Submission FV 122, 16 June 2010.

[280] Law Council of Australia, Submission FV 180, 25 June 2010.

[281] Northern Territory Legal Aid Commission, Submission FV 122, 16 June 2010.

[282] Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010.

[283] Legal Aid NSW, Submission FV 219, 1 July 2010.

[284] National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010.

[285] Women’s Legal Services NSW, Submission FV 182, 25 June 2010. See also, Justice for Children, Submission FV 148, 24 June 2010; C Pragnell, Submission FV 70, 2 June 2010.

[286] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [8.22]–[8.25].

[287] Crimes Act 1958 (Vic) s 37AA. This approach was also recommended by Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 85.

[288] D Smith, ‘Reckless Rape in Victoria’ (2008) 32 Melbourne University Law Review 1007.

[289] Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 67.

[290] Ibid, 85.

[291] Jurors, when assessing the honesty and reasonableness of a belief, would have two tasks: assessing the honesty of the belief, including any steps taken by the accused to ascertain whether the complainant was consenting; and assessing the reasonableness of the belief, an objective factor to be judged by the standard of a reasonable person familiar with all the circumstances that were known to the accused at the relevant time.

[292] Crimes Act 1961 (NZ) s 128(2).

[293] Sexual Offences Act 2003 (UK) s 1. See also, s 75(1).

[294] Criminal Code RSC 1985 C-46 s 273.2 However, see discussion of the effectiveness of these provisions in the context of sexual assault by a current or former intimate partner in M Randall, ‘Sexual Assault in Spousal Relationships,“Continuous Consent” and the Law, Honest but Mistaken Judicial Beliefs’ (2008) 32 University of Manitoba Law Journal 144.

[295] Sexual Offences Act 2003 (UK) s 1.

[296] Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005), 49.

[297] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [8.15].