Consent

The defence of consent is frequently a central issue in relation to sexual offence cases where the absence of consent is a key element of the charge.

The vast majority of sexual assault trials in Western Australia focus on whether or not the alleged victim (or ‘the complainant’) consented to sex and/or whether the defendant held an honest and reasonable but mistaken belief that the sexual act was consented to.

The Age of Consent

The ‘age of consent’ refers to the legal minimum age in which a person can engage in sexual activity in a jurisdiction.

In Western Australia, the minimum age of consent is 16 years old, however the age of consent is raised to 18 years old if the parties are engaged in a relationship with someone in a position of care, supervision or authority. A person is in a position of authority if they are a person’s guardian, teacher, health professional, social worker or are otherwise in a position of power and influence.

Being over the age of consent and having sex with someone under the age of consent could constitute number of criminal offences under the Criminal Code Act 1913 (WA). These include:

• Various offences related to engaging in sexual activity with a child under 13 years old, outlined under section 320 of the Code, which carry a maximum penalty of 20 years imprisonment.
• Various offences related to engaging in sexual activity with a child over 13 years old but under 16 years old, outlined under section 321 of the Code, which carry a maximum penalty of 14 years imprisonment.
• The offence of persistent sexual conduct with a child under 16 years old, outlined under section 321A of the Code, which carries a maximum penalty of 20 years imprisonment.
• The offence of engaging in sexual activity with a child over 16 years old but under 18 years old when the offender is in a position of care, supervision or authority, outlined under section 322 of the Code, which carries a maximum penalty of 10 years imprisonment.

For each of the offences above, there is a defence available if the defendant can prove that there were reasonable grounds for them to believe that the alleged victim was over the age of consent and the defendant was not more than three years older than the alleged victim.

What Is the law relating to Consent?

“Consent” is defined under section 319 of the Code as being ‘consent freely and voluntarily given’. Consent is not ‘freely and voluntarily given’ if it is obtained by force, threat, intimidation, deceit or any fraudulent means. Moreover, in any sexual assault trial the fact that the complainant did not offer physical resistance to the sexual act cannot be used as evidence of consent.

Unlike some other jurisdictions, the criminal law in WA does not specify a means in which sexual partners must obtain consent. For example, there is no legal requirement for positive words or actions to indicate consent was given.

There are a number of different instances where the prosecution may seek to prove that the complainant was unable to give consent. Those might include:

• Where the complainant lacks the capacity to understand the sexual nature of the act;
• Where the complainant is mistaken about the sexual nature of the act;
• When the complainant is incoherent or asleep at the time of the sexual act;
• The complainant withdraws their consent to the continuation of sexual acts that had, up until then, been consented to.
• When the complainant mind is disordered by intoxication or stupefaction by consumption of a substance to the point where they are incapable of consenting.
• When the complainant agrees to the sexual act because they feel that harm or detriment may be suffered by them if they did not submit.

The Defence of Mistake of Fact

A person charged with the offence of sexual assault may be able to raise a full defence to the charge known as the ‘mistake of fact defence’. The defence is outlined under section 24 of the Code which states:

A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist

The mistake of fact defence requires a defendant to identify material, whether called by the defence or elicited during the prosecution case, from which, at the least, it is open to invite a jury to infer that the accused held an honest and reasonable belief in the fact that the complainant consented to the sexual activity. Once the defence is properly raised it is for the prosecution to negate it. If the prosecution fails to disprove that the defendant held an honest and reasonable belief that the complainant consented, the defendant will be acquitted of the charge.

The mistake of fact defence requires the jury to consider two key elements. The jury must consider whether the accused:

1. Held an honest belief that the complainant was consenting to sexual activity; and
2. The belief was ‘reasonable’ taking into account relevant personal characteristics of the defendant.

The first element is a subjective test as to whether or not at the time of the alleged sexual assault the defendant held an honest belief the complainant was consenting.

The second element is more complex, asking whether the defendant’s belief was what an ordinary person would consider ‘reasonable’ (an objective test) but capable of taking into account the personal characteristics of the defendant. The Supreme Court of Western Australia in Aubertin v The State of Western Australia described the test as a ‘mixed test’ noting that [43]:

The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself.

Relevant personal attributes of the defendant that could be taken into account include age, gender, ethnicity, as well as physical, intellectual and other disabilities. It does not however include values or religious or cultural beliefs (such as the belief that a married woman cannot refuse consent).

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Author Andrew Williams