What is Consent?
It is essential for the prosecution to prove ‘lack of consent’ when prosecuting most sexual assault cases.
The main exceptions to this rule are offences involving children under 16 years of age, or children between 16 and 18 years under ‘special care’ or persons with a mental impairment.
If a lack of consent cannot be proved, you must be found not guilty.
If the complainant appears to have consented to sexual intercourse, your lawyer should:
- Obtain any statements or materials supporting your case eg any CCTV footage, telephone records, photographs, emails or other evidence of a relationship etc, and
- Write to the prosecution and request that the case against you is dropped.
A good sexual assault lawyer will be able to:
- Prepare strong written submissions,
- Serve them upon police and the DPP, and
- Negotiate the withdrawal of sexual assault charges.
Section 61HA of the NSW Crimes Act defines consent as when a person ‘freely and voluntarily agrees to the sexual intercourse’.
To establish that ‘sexual intercourse without consent’ occurred, the prosecution must prove two things beyond reasonable doubt:
1. That the other person did not consent, and
2. That you knew or were reckless as to whether the other person was consenting.
The law says that there is no consent where the complainant is unconscious, asleep, under a threat of force or terror, or is under a mistaken belief as to your identity, that you are married or that you are performing a medical or hygenic procedure.
Factors that are relevant in determining whether a person consents include any substantial intoxication, or any evidence of intimidation, coercion, threat or abuse of a position of trust.
Any steps that you took to ascertain whether the complainant was consenting will also be relevant.