Consent

Question 1

What must the Crown prove in establishing if sexual connection is unlawful?

Answer 1

• the complainant did not consent to the sexual act (a subjective test), and
• the offender did not believe the complainant was consenting (a subjective test), or
• if he did believe she was consenting, the grounds for such a belief were not reasonable (an objective test).

Question 2

** EXAM ** - Consent defined

Answer 2

“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another.

Question 3

** EXAM ** - Consent Case Law

Answer 3

R v Cox

Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgement”.

Question 4

What was held in R v Herbert regarding reluctant consent?

Answer 4

A true consent may be given reluctantly or hesitantly and may be regretted afterwards, but if the consent is given even in such a manner, provided it is without fear of the application of force or the result of actual or threatened force, then the act of sexual connection would not be rape.

Question 5

** EXAM ** - Objective test - Case Law

Answer 5

R v Gutuama

Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought that [the complainant] was consenting”.

Question 6

When is consent relevant?

Answer 6

At the time the act actually took place.

The complainant’s behaviour and attitude before or after the act itself may be relevant to that issue, but is not decisive.

Reference: R v Adams

Question 7

** EXAM ** - Matters not constituting consent *

Answer 7

Section 128A - CA 1961

• lack of resistance
• force, threat or fear of force
• asleep or unconscious
• affected by alcohol or drugs
• affected by intellectual, mental or physical condition or impairment of such a nature and degree
• mistaken ID
• mistaken about nature and quality

Question 8

** EXAM ** - Distinguishing consent - Case Law

Answer 8

R v Koroheke

It is important to distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable. For example, submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.

Question 9

** EXAM ** - Reasonable grounds for consent - three step process and questions to ask

Answer 9

Step 1: What was the complainant thinking at the time? Was she consenting - (subjective test)

Step 2: If she was consenting, did the defendant believe she was consenting? What was the defendant thinking at the time? (subjective test)

Step 3: If the offender believed the complainant was consenting, was that belief reasonable in the circumstances? What would a reasonable person have believed if placed in the defendant’s shoes? (objective test)