Sexual Offences: The Concept of Consent and Relevant Law
In past 5 years Sexual offences have been on a rise in Victoria and police have recorded 45% more offences in 2016 in comparison to 2012. According to Victorian Crime Statistics Agency In 2016 Police recorded 12,956 sexual offences across the state, with an offence rate of 214.0 offences per 100,000 people in Victoria.
Criminal Charges involving sexual offences are often complex to defend and the court process can be embarrassing and challenging for both parties. The most common defence in sexual offences is of “Consent”. People often claim that the complainant had consented to a particular act in question. Before a charge of sexual offence involving consent can be challenged in court, it is important to understand this concept.
MEANING OF CONSENT
According to Section 36(1) of the Crimes Act 1958 consent means free agreement. Section 36(2) provides a non-exhaustive list of circumstances in which a person is regarded as not having given free agreement. Pursuant to section 36(2)(l) a person does not consent even if “The person does not say or do anything to indicate consent to the act”. This provision 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.
Reasonable Belief in Consent
Victorian Judicial College has recognised that, the fault element fault in this offence will be satisfied if the prosecution proves one of the following mental states beyond reasonable doubt
i) The accused believed that the complainant was not consenting.
ii) The accused did not believe the complainant was consenting. This includes circumstances where the accused gave no thought as to whether the complainant was consenting.
The concept of reasonable belief for the purposes of sexual Offences has been codified and Pursuant to section 36A
(1) Whether or not a person reasonably believes that another person is consenting to an act depends on the circumstances.
(2) Without limiting subsection (1), the circumstances include any steps that the person has taken to find out whether the other person consents or, in the case of an offence against section 42(1), would consent to the act.
The reasonableness of belief in consent is to be assessed against an objective standard. What makes a belief in consent objectively reasonable depends on the circumstances of the case. This allows for the standard of reasonableness to take into account various aspects of the circumstances. However, the standard is not what the accused thinks it is reasonable to believe or simply what appeared reasonable to the accused. Nor is the standard that of a hypothetical reasonable person who may not have any of the characteristics or attributes of the accused. Instead, as stated by the Western Australian Court of Appeal in Aubertin v The State of Western Australia [2006] WASCA 229
"Reasonableness must be judged in the light of generally accepted community standards and attitudes”
Crimes Amendment (Sexual Offences and Other Matters) Act 2014, and the Jury Directions Act 2015, the statutory directions now address the fault element that the accused did not reasonably believe that the complainant was consenting. Under the current sexual offence laws, proof that the accused held an unreasonable belief will prove the fault element for rape and sexual assault.
As stated earlier Sexual Offences are often complex and they carry a huge stigma for everyone involved. It is recommended to seek legal advice if a person is charged with a Sexual Offence and wish to defend their case.
