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.