7.3 - Sexual Offences
7.3.B - Consent and Consent-related Fault Element[1]
7.3.B.1 - Bench Notes: Consent and reasonable belief in consent (1 July 2015 onwards)
Note: These Bench Notes describe the law relating to consent and reasonable belief in consent for sexual offences committed on or after 1 July 2015. For information on consent and the fault element for offences committed before 1 July 2015, see Bench Notes: Consent and awareness of non-consent (pre 1 July 2015)
1. The Crimes Amendment (Sexual Offences and Other Matters) Act 2014 altered the statutory definition of several sexual offences, including rape and sexual assault to replace the subject fault element of “awareness of non-consent” with a partially objective fault element of “no reasonable belief in consent”.
2. The purpose of this change was to simplify the law on rape and rape related offences, particularly in relation to an accused’s claimed belief that the complainant was consenting (Criminal Law Review Consultation Paper “Review of Sexual Offences” September 2013, 3-37).
3. The Amendment Act also made consequential changes to the definitions of consent and sexual penetration.
4. These Bench Notes explain the law relevant to consent and reasonable belief in consent which applies to sexual offences committed on or after 1 July 2015.
5. The Crimes Act 1958 defines “consent” to mean “free agreement” and describes (non-exclusively) circumstances where a person “does not freely agree to an act” (s 34C between 1 July 2015 and 30 June 2017 and s 36 from 1 July 2017 onwards).
6. Jury Directions Act 2015 ss 46 and 47 provide for jury directions that must be given in respect of the complainant’s consent and the accused’s awareness of that state of consent in sexual offence cases, where these matters are in issue.
7. Sections 46 and 47 of the Jury Directions Act 2015 were further amended by the Crimes Amendment (Sexual Offences) Act 2016.
Operation of Consent Provisions
8. Crimes Act 1958 s34C provides the meaning of consent for the purposes of Subdivisions (8A) to (8D).
9. Sections 46 and 47 of the Jury Directions Act 2015 are limited in two ways:
i) The sections provide for directions that are only to be given where a request is made, or there are otherwise substantial and compelling reasons for giving the directions (Jury Directions Act 2015 ss 14, 16).
ii) Sections 46 and 47 only apply to proceedings for offences against provisions in Subdivision (8A), (8B), (8C) or (8D) of Division 1 of Part 1 of the Crimes Act 1958
10. The directions in ss 46 and 47 do not apply to non-sexual offences where consent may be an issue, such as common assault and intentionally causing injury.
Commencement and Transition
11. Before 1 July 2015, Crimes Act 1958 ss36, 37AA and 37AAA provided for the meaning of consent and jury directions on consent. These sections were replaced by Crimes Act 1958 s34C and Jury Directions Act 2015 ss46 and 47.
12. Crimes Act 1958 s34C and Jury Directions Act 2015 ss46 and 47 only apply to offences alleged to have been committed on or after 1 July 2015 (Crimes Act 1958 s626; Jury Directions Act 2015 Schedule 1, clause 1(2)).
13. The amendments to the Jury Directions Act 2015 introduced by the Crimes Amendment (Sexual Offences) Act 2016 commenced on 26 September 2016, and apply to trials commenced on or after that date, for offences committed on or after 1 July 2015.
14. For offences committed before 1 July 2015, see Bench Notes: Consent and awareness of non-consent (pre 1 July 2015).
15. From 1 July 2017, the definition of consent is now found in Crimes Act 1958 s 36, following the commencement of the Crimes Amendment (Sexual Offences) Act 2016. In addition to the change of section number, the definition of consent includes one additional circumstance in which a person does not consent (see s36(2)(f)). The Amendment Act did not introduce any relevant transitional provisions to the Crimes Act 1958. As a matter of prudence, the Charge Book has adopted the view that s36(2)(f) only applies to offences committed on or after 1 July 2017.
Sexual Offences Where Consent is Relevant
16. Consent will generally be relevant to the following offences, as it is an element of each offence that there be an absence of consent:
i) Rape (s38)
ii) Rape by compelling sexual penetration (s39)
iii) Sexual assault (s40)
iv) Sexual assault by compelling sexual touching (s41)
v) Assault with intent to commit a sexual offence (s42)
17. Consent may be relevant to the following offences, as it is an element of the offence that there be an absence of consent in the particular circumstances identified in the offence provision:
i) Incest (s44 – as relevant to the defence of compulsion)
ii) Sexual Penetration of a Child Under the Age of 16 (s45)
iii) Indecent Act With Child Under the Age of 16 (s47)
iv) Sexual Penetration of a 16 or 17 Year Old Child (s48)
v) Indecent Act With 16 or 17 Year Old Child (s49)
vi) Indecent Act With 17 Year Old Child (s49 - repealed)
vii) Sexual Penetration of a Person with a Cognitive Impairment (s51(1), s52(1))
viii) Indecent Act with a Person with a Cognitive Impairment (s51(2), s52(2))
18. Offences contrary to s47A (Persistent abuse of child under the age of 16) and s49A as it stood before 1 July 2017 (Facilitating Sexual Offences Against Children) may also require consent directions if the underlying offence is listed above.
19. For offences under sections 45, 47, 48, 49, 51 and 52 (as in force before 1 July 2017), consent is not a defence unless the accused establishes an additional exculpatory matter, such as a belief that the child was aged 16 or over, or that the accused was married to the complainant. The relevant exculpatory matters are explained in the Bench Notes for each offence.
20. Where consent is a defence, the prosecution must prove that the complainant did not consent (Crimes Act 1958 ss45(4A), 47(3), 48(3), 49(3), 51(6), 52(4)).
21. It is an unresolved question what, if any, additional fault element arises where consent is a defence (see R v Deblasis & Deblasis (2007) 19 VR 128; R v Mark & Elmazovski [2006] VSCA 251).
22. In cases where the accused is charged with sexual penetration of a child or indecent act with a child, the judge should require the parties to identify before the trial whether consent will be in issue, or whether it will only be the additional exculpatory matters which are in issue (Criminal Procedure Act 2009 ss182, 183, 199). This will allow the judge to determine what directions are required in relation to consent and, if necessary, will allow the parties to challenge those intended directions on an interlocutory appeal (Criminal Procedure Act 2009 s295).
23. While the Crimes Act does not expressly refer to a fault element associated with consent for offences before 1 July 2017, the prudent approach, which is taken in this Charge Book, is to require for these offences that the prosecution prove the accused was aware that the complainant was not or might not be consenting. For offences after 1 July 2017, the drafting of the defences for sexual offences against children indicates that belief in consent is not part of the defences.
Meaning of “Consent”
24. Between 1 July 2015 and 30 June 2017, “consent” was defined in s34C of the Crimes Act 1958 to mean “free agreement”.
25. From 1 July 2017, s36 of the Crimes Act 1958 similarly defined consent as “free agreement”.
26. Section 34C(2) of the Crimes Act 1958 listed the following situations in which a person is regarded as not having given free agreement. This is not an exhaustive list.
a) The person submits to the act because of force or the fear of force, whether to that person or someone else;
b) The person submits to the act because of the fear of harm of any type, whether to that person or someone else or an animal;
c) The person submits to the act because the person is unlawfully detained;
d) The person is asleep or unconscious;
e) The person is so affected by alcohol or another drug as to be incapable of consenting to the act;
f) The person is incapable of understanding the sexual nature of the act;
g) The person is mistaken about the sexual nature of the act;
h) The person is mistaken about the identity of any other person involved in the act;
i) The person mistakenly believes that the act is for medical or hygienic purposes;
j) If the act involves an animal, the person mistakenly believes that the act is for veterinary, agricultural or scientific research purposes;
k) The person does not say or do anything to indicate consent to the act;
l) Having initially given consent to the act, the person later withdraws consent to the act taking place or continuing.
27. Section 36(2) lists all of these circumstances and included the additional circumstance:
· the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act (Crimes Act 1958 s36(2)(f)).
28. While the statutory definition of consent is not expressly drafted as a “deeming provision”, it is relatively clear that it must be treated this way (see Jury Directions Act 2015 s46 and Wilson v R [2011] VSCA 328).
29. In cases where the prosecution seeks to rely on a circumstance which is not listed in ss34C or 36 as establishing an absence of free agreement, the judge will need to modify the directions accordingly.
30. Section 34C(2)(b) and section 36(2)(b) states that submission because of “the fear of harm of any type, whether to that person or someone else or an animal” is not consent. The section provides no assistance as to the nature of the harm contemplated. It may extend beyond physical or psychological injury, but that has not yet been determined.
31. Section 34C(2)(e) and section 36(2)(e) requires that a person is “so affected” by drugs or alcohol as to be incapable of free agreement. Mere impairment of judgement or reduction of inhibitions does not negate free agreement (R v Wrigley 9/2/1995 CA Vic). Note that intoxication can also be relevant to the issue of reasonable belief in consent (see below).
32. Section 34C(2)(f) and section 36(2)(g) states that a person does not consent if they are incapable of understanding the sexual nature of the act. It must be proved that the person was unable to comprehend either that what is proposed is the physical fact of penetration, or that the act of penetration proposed is sexual (as distinct from an act of a totally different kind) (R v Morgan [1970] VR 337; Neal v R [2011] VSCA 172).
33. Section 34C(2)(f) and section 36(2)(g) relates to the complainant’s intellectual capacity. But “capacity to understand the sexual nature of the act” is not the only basis upon which a cognitive impairment may be relevant to consent. A person who understands the sexual nature of an act may be nevertheless incapable of freely agreeing to it, if that person is intellectually unable to make a refusal of consent or unable to understand his or her right to refuse consent (R v Mobilio (1990) 50 A Crim R 170; R v Eastwood [1998] VSCA 42).
34. In deciding whether a complainant who knew the nature and character of an act of sexual intercourse had the capacity to give real consent to it, the jury can have regard to such things as the complainant’s capacity to appreciate:
· that most of the community draw a distinction in quality between sexual acts and other acts of intimacy; and
· that a decision to consent or not involves questions of the morality or social acceptability of the conduct (R v Mobilio (1990) 50 A Crim R 170; R v Eastwood [1998] VSCA 42).
35. Section 34C(2)(i) and section 36(2)(j) says that a person does not consent where they have a mistaken belief that the sexual penetration was for either a medical or hygienic purpose. At common law, mistake as to the purpose of penetration did not deprive consent of reality (R v Mobilio (1990) 50 A Crim R 170. Note that the law stated in Mobilio as to capacity to consent is still correct).
36. Sections 34C(2)(j), (k) and (l) and sections 36(2)(k), (l) and (m) are new provisions which did not exist in the previous statutory definition of consent.
37. Section 34C(2)(j) and section 36(2)(k) provides that a person does not consent to a sexual act with an animal if the person mistakenly believes that the act is for veterinary, agricultural or scientific research purposes.
38. Section 34C(2)(k) and section 36(2)(l) states that a person does not consent if “the person does not say or do anything to indicate consent to the act”. This codifies what has been termed the ‘communicative model’ of consent, and requires communication of consent. This amends the law as it existed prior to 1 July 2015.
39. Prior to 1 July 2015, the jury were directed that the fact that the complainant did not say or do anything to indicate consent was “enough to show” that the act took place without consent (Crimes Act 1958 s37AAA(d)). Courts held that this was not a deeming provision, and that the prosecution was still required to prove the absence of consent. This required evidence to allow the jury to find, as a matter of fact, that the complainant did not say or do anything to indicate free agreement. It did not apply where there was an absence of evidence concerning the complainant’s conduct at the time of the alleged sexual act (ISJ v R [2012] VSCA 321).