The Defence of Consent in Sexual Assault Cases

One of the most common defences to an allegation of sexual assault is that the complainant consented to the sexual activity. It must be remembered that you are presumed innocent and the prosecutor must prove that you are guilty beyond a reasonable doubt. This means that in order for there to be a conviction for sexual assault, it must be proven beyond a reasonable doubt that there was no consent.

The absence of consent is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred

While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. However, the accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mental element stage of the inquiry.

It is important to note that there are some restrictions on raising the defence of consent. The defence is not available in the following situations:

· If the complainant submits due to force or threats of force;

· Fraud;

· The exercise of authority;

· Where the agreement is expressed by the words of conduct of person other than the complainant;

· The complainant is incapable of consenting to the activity. This usually arises when the complainant is too intoxicated by alcohol or drugs;

· The accused induces the complainant to engage in the activity by abusing a position of trust, power or authority

· The complainant expresses by words or conduct, a lack of agreement to engage in the activity; or

· The complainant, having consented to engage in sexual activity, expresses by words or conduct, a lack of agreement to continue to engage in the activity.

Despite these exceptions, consent is still a valid defence in many cases and can result in an acquittal.


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