The law and sexual offences against adults in Australia

ACSSA Issues No. 4 – June 2005

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Non-consent of the victim-complainant

The criminal laws of every state and territory contain sexual offences, which can be committed whether the victim-complainant consents, or not. There are some circumstances in which the law simply will not recognise any apparent consent. The best-known examples are sexual offences involving children, where the law states that children under a certain age are not capable of giving legally recognisable consent.

However, non-consent is a crucial element of most Australian offences involving adult victim-complainants. This focus on the victim-complainant's state of mind at the time of the offence can be problematic because it can lead to an inappropriate focus on the complainant during trial.

The prosecution bears the burden of proving beyond reasonable doubt that the victim- complainant was not consenting to sexual intercourse. In practice, this means that the legal starting point assumes that the victim-complainant was consenting, which the prosecution needs to disprove in order to achieve a conviction (MCCOC 1999; Corbett et al. 1993). This has resulted in "unwarranted reliance on stereotyped views of what might amount to consensual sexual behaviour" which has tended to position real rape victims as those who fight back, who vigorously defend themselves, who are virginal or who are assaulted by strangers (MCCOC 1999: 21).

The ACT has addressed this issue by creating a series of "aggravated sexual assaults". If the accused injured, assaulted or threatened the victim-complainant with the intent of engaging in sexual intercourse, the offences have been committed. The prosecution does not need to prove that the victim-complainant did not consent. The legislation presumes that a person who has been injured, assaulted or threatened with injury would not consent to sexual intercourse with their assailant or anyone who assisted in the assault. NSW, QLD and VIC also have offences of "assault with intent to commit rape", none of which require proof of non-consent.

However, the ACT offence of "sexual intercourse without consent", and the key penetrative sexual offences in every other jurisdiction all require proof of the complainant's non-consent. Lack of consent is understood as the critical thing that distinguishes wanted sexual intercourse from unwanted and criminal sexual assaults.

The meaning of "consent"

In attempts to improve the protection of adult sexual autonomy and to remove the victim-complainant's mental state from the spotlight in sexual offence trials, almost every jurisdiction has reformed the law dealing with consent. Victoria's approach to consent is regarded as a best-practice approach by some commentators (Home Office 2000; ACT Law Reform Commission 2001). It defines consent as "free agreement" and states that juries must be told that: "The fact that a person did not say or do anything to indicate free agreement to a sexual act is normally enough to show that the act took place without their free agreement." Similarly, in Tasmanian law "a person does not freely agree to an act if the person does not say or do anything to communicate consent". These consent standards make it clear that a person who does not positively communicate free agreement to sex through their words or actions is not consenting. They provide the strongest protections of sexual autonomy of any Australian jurisdiction in relation to consent.

NT, TAS and VIC all state that sexual intercourse without "free agreement" is an offence. QLD and WA define "consent" as "free and voluntary consent", while judge-made law in SA defines consent as "free and willing consent".20

The ACT requires juries to be instructed that the victim-complainant has not consented just because she or he did not say or do anything to indicate non-consent. These provisions fall short of the TAS and VIC standards requiring positive indications of consent, but go further than the laws of NT, SA, VIC and WA, which merely make it clear that the absence of physical resistance by the victim-complainant or the absence of injury does not demonstrate consent. These legislative statements are designed to respond both to the historical requirements of physical resistance to demonstrate non-consent and the discredited myth that people who do not consent will always be able physically to resist.

Circumstances in which any apparent consent is legally invalid

Every Australian jurisdiction recognises that there are some circumstances in which any apparent consent to sex has not been given in a free or willing way. However, the range of circumstances in which the law recognises that consent has not been given varies dramatically from one jurisdiction to another.

Violence or force

Every Australian jurisdiction recognises that the use of force against the victimcomplainant is inconsistent with consent. However, it is less clear whether violence against anyone else will be legally recognised as inconsistent with real consent. Only the ACT21, NT, TAS and VIC specifically recognise the use of force against someone other than the victim-complainant as invalidating consent.

TAS law states that where the victim-complainant "suffers grievous bodily harm as a result of, or in connection with" a sexual offence, the injury itself is evidence of the victim-complainant's lack of consent unless there is proof to the contrary.

Unlawful detention

Where the complainant is unlawfully detained, any consent to sexual intercourse given by the complainant will be invalidated in the ACT, NT, TAS and VIC. In TAS, where the victim-complainant consents to sexual intercourse because of the unlawful detention of someone else, that consent will also be invalidated.

All Australian jurisdictions recognise that some threats can make people so intimidated or fearful that they submit to sexual intercourse. The law recognises that this kind of submission is not real consent.

Threats, fear and intimidation

All Australian jurisdictions recognise that some threats can make people so intimidated or fearful that they submit to sexual intercourse. The law recognises that this kind of submission is not real consent. Each jurisdiction describes the kind of threats that the law recognises as invalidating consent.

SA law offers very limited protection. Case law establishes that threats of force invalidate consent, but does not offer guidance on whether threats of any other kind against someone other than the victim-complainant will invalidate consent.22 Other jurisdictions go further. For example, TAS law invalidates consent due to "threats of any kind" against the victim-complainant or another person. QLD and WA law invalidate consent due to "threats" or "intimidation". The ACT specifies a wide range of threats as invalidating consent to sexual intercourse, including threats "to inflict violence or force" on the complainant or someone else "present or nearby"; threats of extortion; and threats "to publicly humiliate or disgrace . . . physically or mentally harass" the complainant or someone else.

Some jurisdictions focus instead (or as well) on the effect of threatening behaviour, referring to the victim-complainant's fear, intimidation or terror. For example, NSW law says that where consent is given because the victim-complainant or someone else was terrified or subjected to threats, that consent is invalid. In the NT and VIC, if the victim-complainant consents to sexual intercourse because of fear that harm of any type will be done to herself, himself or another person, that consent will be invalid.

NSW has an additional offence of "sexual intercourse procured by intimidation, coercion and other non-violent threats". It is committed where a person has sexual intercourse with someone else, knowing that the other person submitted to sexual intercourse because of intimidation or threats which did not involve threats of physical force. This offence carries a lower penalty than "sexual assault".

Intoxication, unconsciousness, sleep

Where the victim-complainant is asleep, unconscious or so affected by alcohol or other drugs that they are not able to freely agree to sexual intercourse, NT, SA23, TAS and VIC law recognise that the victim-complainant is incapable of consenting. Under QLD and WA law, consent means free and voluntary consent, which suggests that a sleeping, unconscious or severely intoxicated victim-complainant would be viewed as incapable of consenting.24 However, in all states and territories, a person who agrees to sexual intercourse when they are under the influence of alcohol or other drugs and who would not have agreed were it not for that influence will be treated as having consented. It is only when they are unable to make a decision about whether or not to consent that the law will invalidate any apparent consent. ACT law adds that consent caused by the complainant's "physical helplessness" will not be recognised by the law.

Fraud, deception and mistaken belief

All jurisdictions recognise that some kinds of fraud, deception or mistaken belief should invalidate consent. However, they differ in the types of fraud that can invalidate consent. They also take different perspectives on addressing fraud and mistaken belief. Some jurisdictions focus on the fraud or deception practised by the accused, while others focus on the mistaken belief formed by the victim-complainant (which may or may not be due to fraud on the part of the accused).

The ACT, TAS and WA recognise consent due to any kind of fraud or deceit as invalidating apparent consent. The jurisdictions with narrower laws about the types of fraud that may impact on consent focus on deception or mistakes about the nature or purpose of the act, about whether the act was needed for medical purposes, or about the identity of the person proposing sexual intercourse.

All jurisdictions recognise that some kinds of fraud, deception or mistaken belief should invalidate consent.

Fraud about the nature of the act involves the accused deceiving the victim-complainant into believing that what will happen is a non-sexual act of some kind, when what the accused actually does is sexual intercourse. Fraud about the purpose of the act addresses situations where the victim-complainant and the accused have the same understanding of the type of act that is proposed. However, the accused has deceived the victim-complainant into believing that the act is needed for one purpose, when the accused is carrying it out for a completely different reason. Fraud about medical or hygienic purposes is a specific example. Laws invalidating consent given as a result of fraud as to medical purposes were passed in many parts of Australia after a case in which an accused led several women to believe he needed to conduct a vaginal ultrasound examination for medical purposes when, in reality, there was no medical purpose for his actions.

Fraud about the identity of the person proposing intercourse recognises that when a person consents to sexual intercourse believing they are having sexual intercourse with a particular person, but they have been deceived into having sex with a completely different person, they have not given genuine consent.25 In some jurisdictions, the law recognises a more specific form of fraud about identity where a person is deceived into believing that they are having sexual intercourse with their sexual partner or mistakenly believes they are married to the accused.

Many jurisdictions recognise mistaken beliefs held by the victim-complainant as invalidating consent to sexual intercourse. Some recognise mistaken belief instead of recognising fraud, while others recognise both fraud and mistaken belief as invalidating consent. For example, TAS, NT and VIC recognise the complainant being mistaken (in TAS, "reasonably mistaken") about the nature of the act (in TAS, the "nature or purpose of the act") as invalidating consent.

Inability to understand the nature of the act

Where a complainant is unable to understand the sexual nature of the act (for example, due to cognitive impairment or young age), the law recognises that they are not genuinely consenting to sexual intercourse. All jurisdictions have specific offences dealing with complainants who are children or cognitively impaired (which are not dealt with in this paper). In addition, the ACT, NT, QLD, SA, TAS and VIC specifically recognise inability to understand the sexual nature of the act as invalidating consent to sexual intercourse (see Goodfellow and Camilleri 2003 and VLRC 2004 for the laws and legal issues relating specifically to people with a cognitive impairment).

How does it work in practice?

ACT model

The ACT approach to consent was intended to reduce the focus on the victimcomplainant's non-consent at trial. However, a range of studies of similar approaches have found that in practice, the law's preoccupation with consent has continued (MCCOC 1999). "Sexual intercourse without consent" is often charged in addition to an aggravated assault, so that consent must be proved (MCCOC 1999). The ACT Law Reform Commission found that few charges were laid under the aggravated sexual offence provisions. "In most cases the charge is in fact one of sexual intercourse without consent" (2001). The ACT Law Reform Commission recommended the current approach be replaced with a rape offence and a series of aggravated rape offences (ACT Law Reform Commission 2001: 30). NSW repealed a similar scheme in 1989 for similar reasons (MCCOC 1996).

Free agreement

Models of consent that use the language of "free agreement" have been seen as defining "consent" more tightly than the previous approaches because they suggest a positive state of mind, where the focus is on what the victim-complainant actually said or did to indicate to the accused that they were consenting. This has been seen as providing better legal recognition of the "sexual autonomy and freedom of choice of adults" (MCCOC 1999:41). Only three jurisdictions (NT, TAS and VIC) have moved to the language of agreement rather than consent.

The ACT consent provisions (which are very similar to those of NSW) do not define consent, but set out circumstances in which consent is not present. Review of these provisions has found that they are unhelpful and insufficiently clear and suggested that they be replaced with a clear definition of consent as "free and voluntary" (ACT Law Reform Commission 2001).

Jury directions

Some jurisdictions, such as NT and VIC have implemented jury directions about consent which the judge is required to provide to the jury. These directions were designed to "formalise good practice" and ensure juries are provided with consistent, appropriate information about the legal standard of consent (MCCOC 1999: 265; Home Office 2004). Recent Victorian evaluation of jury instructions designed to make sure that juries understand that inactivity or silence indicate lack of consent under Victorian law has shown that the directions are almost always given (VLRC 2004).

Although the Victorian legislation does not require a direction on these factors, the evaluation has found that the factors, which are recognised as negating any apparent consent (such as force, threats and fraud), are only referred to by judges in about half of all cases when the jury is being instructed. However, prosecutors do not appear to be objecting to the absence of direction or the failure of judges to draw attention to circumstances in which consent is legally invalid (VLRC 2004).

Review of Tasmanian jury instructions also showed that in the absence of required jury instructions, juries were seldom told that submission in the face of violence and threats did not equate to consent. Terese Henning's submission to the Tasmanian review concluded that "in the absence of such instructions the result has not been neutrality but preservation of stereotypes which enable coercion to be perceived as legitimate sexual conquest and seduction" (Task Force on Sexual Assault and Rape in Tasmania 1998: 30).

Footnotes

20 Question Of Law Reserved On Acquittal Pursuant To Section 350 (1a) Criminal Law Consolidation Act (No. 1 Of 1993) (1993) 59 SASR 214; (1993) 66 A Crim R 259.

21 In the ACT, the other person must be "present or nearby".>

22 Question Of Law Reserved On Acquittal Pursuant To Section 350(1a) Criminal Law Consolidation Act (No. 1 Of 1993) (1993) 59 SASR 214; (1993) 66 A Crim R 259, 265.

23 Lang (1975) 62 Cr App R 50; R v Blayney and Blayney [2003] SASC 405; R v Green [2001] SASC 25.

24 R v Francis [1993] 2 Qd R 300.

25 R v Hauth and Fiora [1994] SASC 4500.