Published by Geoff Harrison | 29 September 2024
As noted by Kirk JA in Smee v R, the former provisions relating to consent and intoxication under s61HE was a poorly drafted provision. The provision relating to consent and intoxication has since been amended; from 1 June 2022, the issue has been addressed more simply in the Crimes Act. Pursuant to s 61HJ(1)(c), a person “does not consent to a sexual activity if ... the person is so affected by alcohol or another drug as to be incapable of consenting to the sexual activity”. (As per Kirk JA in Smee v R at [5] and [13]).
Other Sources:
Sexual Assault Trials Handbook: Important general directions in sexual assault trials
Criminal Trial Courts Bench Book: Sexual intercourse without consent — until 31 May 2022
Criminal Trial Courts Bench Book: Sexual intercourse without consent— from 1 June 2022
NSW Law Reform Commission Report 148: Consent in Relation to Sexual Offences
Cases:
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Extracted Legislation:
CRIMES ACT 1900 - SECT 61HI Consent generally
Consent generally
(1) A person
"consents" to a sexual activity if, at the time of the sexual activity, the person freely and voluntarily agrees to the sexual activity.
(2) A person may, by words or conduct, withdraw consent to a sexual activity at any time.
(3) Sexual activity that occurs after consent has been withdrawn occurs without consent.
(4) A person who does not offer physical or verbal resistance to a sexual activity is not, by reason only of that fact, to be taken to consent to the sexual activity.
(5) A person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity.
Example-: A person who consents to a sexual activity using a condom is not, by reason only of that fact, to be taken to consent to a sexual activity without using a condom.
(6) A person who consents to a sexual activity with a person on one occasion is not, by reason only of that fact, to be taken to consent to a sexual activity with-
(a) that person on another occasion, or
(b) another person on that or another occasion.
CRIMES ACT 1900 - SECT 61HJ Circumstances in which there is no consent
Circumstances in which there is no consent
(1) A person does not consent to a sexual activity if-
(a) the person does not say or do anything to communicate consent, or
(b) the person does not have the capacity to consent to the sexual activity, or
(c) the person is so affected by alcohol or another drug as to be incapable of consenting to the sexual activity, or
(d) the person is unconscious or asleep, or
(e) the person participates in the sexual activity because of force, fear of force or fear of serious harm of any kind to the person, another person, an animal or property, regardless of-
(i) when the force or the conduct giving rise to the fear occurs, or
(ii) whether it occurs as a single instance or as part of an ongoing pattern, or
(f) the person participates in the sexual activity because of coercion, blackmail or intimidation, regardless of-
(i) when the coercion, blackmail or intimidation occurs, or
(ii) whether it occurs as a single instance or as part of an ongoing pattern, or
(g) the person participates in the sexual activity because the person or another person is unlawfully detained, or
(h) the person participates in the sexual activity because the person is overborne by the abuse of a relationship of authority, trust or dependence, or
(i) the person participates in the sexual activity because the person is mistaken about-
(i) the nature of the sexual activity, or
(ii) the purpose of the sexual activity, including about whether the sexual activity is for health, hygienic or cosmetic purposes, or
(j) the person participates in the sexual activity with another person because the person is mistaken-
(i) about the identity of the other person, or
(ii) that the person is married to the other person, or
(k) the person participates in the sexual activity because of a fraudulent inducement.
(2) This section does not limit the grounds on which it may be established that a person does not consent to a sexual activity.
(3) In this section-
"fraudulent inducement" does not include a misrepresentation about a person’s income, wealth or feelings.
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