What are sexual offences?
Sexual offences are sexual activities carried out on one person without their consent. They are offences of a very serious nature which make the victim feel frightened, threatened and often suffer long-lasting effects.
In criminal proceeding involving sexual offences against an adult the question of consent is often integral to the case. That is whether the other person (complainant) had consented to an act. It may also need to be considered whether the accused had knowledge of consent.
What is consent?
The Crimes Act 1900 defines the term consent as free and voluntary agreement between the parties.
“Consent involves conscious and voluntary permission by the complainant to engage in sexual intercourse with the accused”. It can be given verbally, or expressed by actions. Similarly, absence of consent does not have to be in words; it may be communicated in other ways. Consent obtained after persuasion is still consent provided that it is ultimately given freely and voluntarily. However, a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting.
Knowledge of Consent
The accused state of mind at the time of the act of intercourse is relevant when determining if they are guilty of a sexual offence. For an accused to be found be guilty of committing a sexual offence without the consent of the other person, it needs to be proved that the accused knew that the complainant did not consent to the sexual activity.
This can be proved in three ways, by showing that:
- the accused actually knew that the complainant did not consent to the sexual activity, or
- even if the accused believed at the time that the complainant was consenting, the accused had no reasonable grounds for holding that belief, or
- the accused was reckless as to whether the complainant consented to the sexual activity.
In order to establish that the accused has been acting recklessly, the prosecution must prove beyond reasonable doubt, either:
- The accused’s state of the mind was such that he or she realised the possibility that the complainant was not consenting but went ahead, determined to have intercourse, regardless of whether the complainant was consenting or not;
- The accused’s state of mind was such that he or she simply failed to consider whether or not the complainant was consenting at all, and just went ahead with the act of sexual intercourse, notwithstanding the risk that the complainant was not consenting would have been obvious to someone with the accused’s mental capacity if they has turned his or her mind to it.
For the purpose of proving a person’s state of mind, all circumstances of the case are considered. These include, any steps taken by the accused to ascertain whether the complainant consented to the sexual intercourse and what was said or done by the complainant at the time of or prior to, the sexual activity.
Furthermore there are situations where a person is unable to give consent. Where a complainant is unconscious or asleep, he or she cannot give consent to sexual intercourse and is incapable of consenting. Difficulties arise where it may not be clear whether the complainant was conscious or not, or where the complainant is affected by drugs or alcohol.
Sexual offences which involve the question of intoxication rely on evidence which can indirectly prove or disprove the consent of the complainant. This can come from third parties who may have been witness to the events leading up to an alleged assault.
In preparation of this newsletter information has been taken from the Attorney General’s Department Discussion Paper entitled the Law of Sexual Assault and Consent. Should you or someone you know be facing allegations with respect to Sexual Assault it is imperative that you maintain a right to silence and seek legal advice from a qualified professional.