Trigger warning

Please note that this chapter (and pages it links to) contains information about sexual assault and violence that may be triggering to survivors.

Contributor

Suzan Gencay

Lawyer

Consent

Last updated

1 July 2021

Most sexual offences depend on consent.

‘Consent’ is defined in section 36 of the Crimes Act; consent means free agreement.

A person can withdraw consent before or during a sexual act. Also, sometimes consent is irrelevant; for example, it is not a defence if someone consented to female genital mutilation or incest.

Circumstances in which a person does not consent to an act include (but are not limited to):

  • the person submits to an act because of force, or the fear of force or the fear of being harmed;
  • the person submits to an act because they are imprisoned;
  • the person is asleep or unconscious;
  • the person is so affected by alcohol or another drug as to be incapable of consenting to the act;
  • the person is incapable of understanding the sexual nature of the act;
  • the person is mistaken about the identity of any other person involved in the act;
  • the person mistakenly believes that the act is for medical or hygienic purposes;
  • the person does not say or do anything to indicate consent to the act; or
  • the person consented to the act and later withdraws consent to the act taking place or continuing.
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