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CRIMES ACT 1900 - SECT 61HE
Consent in relation to sexual offences
61HE Consent in relation to sexual offences
(1) Offences to which section applies This section applies for the purposes of
the offences, or attempts to commit the offences, under sections 61I, 61J,
61JA, 61KC, 61KD, 61KE and 61KF.
(2) Meaning of "consent" A person
"consents" to a sexual activity if the person freely and voluntarily agrees to
the sexual activity.
(3) Knowledge about consent A person who without the
consent of the other person (the
"alleged victim" ) engages in a sexual activity with or towards the
alleged victim, incites the alleged victim to engage in a sexual activity or
incites a third person to engage in a sexual activity with or towards the
alleged victim, knows that the alleged victim does not consent to the
sexual activity if-- (a) the person knows that the alleged victim does not
consent to the sexual activity, or
(b) the person is reckless as to whether
the alleged victim consents to the sexual activity, or
(c) the person has no
reasonable grounds for believing that the alleged victim consents to the
sexual activity.
(4) For the purpose of making any such finding, the trier of
fact must have regard to all the circumstances of the case-- (a) including any
steps taken by the person to ascertain whether the alleged victim consents to
the sexual activity, but
(b) not including any self-induced intoxication of
the person.
(5) Negation of consent A person does not consent to a
sexual activity-- (a) if the person does not have the capacity to consent to
the sexual activity, including because of age or cognitive incapacity, or
(b)
if the person does not have the opportunity to consent to the sexual activity
because the person is unconscious or asleep, or
(c) if the person consents to
the sexual activity because of threats of force or terror (whether the threats
are against, or the terror is instilled in, that person or any other person),
or
(d) if the person consents to the sexual activity because the person is
unlawfully detained.
(6) A person who consents to a sexual activity with or
from another person under any of the following mistaken beliefs does not
consent to the sexual activity-- (a) a mistaken belief as to the identity of
the other person,
(b) a mistaken belief that the other person is married to
the person,
(c) a mistaken belief that the sexual activity is for health or
hygienic purposes,
(d) any other mistaken belief about the nature of the
activity induced by fraudulent means.
(7) For the purposes of subsection (3),
the other person knows that the person does not consent to the sexual activity
if the other person knows the person consents to the sexual activity under
such a mistaken belief.
(8) The grounds on which it may be established that a
person does not consent to a sexual activity include-- (a) if the person
consents to the sexual activity while substantially intoxicated by alcohol or
any drug, or
(b) if the person consents to the sexual activity because of
intimidatory or coercive conduct, or other threat, that does not involve a
threat of force, or
(c) if the person consents to the sexual activity because
of the abuse of a position of authority or trust.
(9) A person who does not
offer actual physical resistance to a sexual activity is not, by reason only
of that fact, to be regarded as consenting to the sexual activity.
(10) This
section does not limit the grounds on which it may be established that a
person does not consent to a sexual activity.
(11) In this section--
"sexual activity" means sexual intercourse, sexual touching or a sexual act.
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