7.3.B.2 - Bench Notes: Consent and Awareness of Non-Consent (Pre 1/07/2015) [1]
1. Section 36 of the Crimes Act 1958 defines “consent” to mean “free agreement” and describes (non-exclusively) seven particular circumstances where a person “does not freely agree to an act”. In this respect s36 is a deeming provision.
2. Section 37, s37AAA and s37AA provide for jury directions that must be given in respect of the complainant’s consent and the accused’s awareness of that state of consent in sexual offence cases, where these matters are in issue.
Operation of Consent Provisions
3. Section 36 applies to the interpretation of Subdivision (8A) to (8D) of the Crimes Act 1958, that is, the sexual offences found in sections 38 to 52.
4. The operation of s37, s37AAA and s37AA is limited in three ways:
i) The three sections create a scheme of directions that are only to be given where “relevant to a fact in issue in a proceeding” (s37(1) (2)).
ii) Section 37AAA(a)-(c) and s37AA rely on the definition of consent found in s36. They are therefore only relevant to proceedings where s36 applies.
iii) Section 37AAA(d) & (e) and s37AA involve directions about consent to “sexual acts”.
5. These limitations have the effect that s37, s37AAA and s37AA do not apply to non-sexual offences where consent may be an issue, such as common assault and intentionally causing injury.
6. For a discussion of the defence of consent in non-sexual offence cases, see Bench Notes: Consent (Non-Sexual Offences)(Topic Not Yet Complete).
Commencement and Transition
7. Section 37 was amended, and s37AAA and s37AA were introduced by the Crimes Amendment (Rape) Act 2007. The new provisions apply only to trials commenced after 1 January 2008. The old s37 still applies in trials commenced prior to 1 January 2008 (Crimes Act 1958 s609(1)).
Sexual Offences Where Consent is Relevant
8. Consent will generally be relevant to the following offences, as it is an element of each offence that there be an absence of consent:
i) Rape (s38(2)(a))
ii) Rape (Failure to withdraw) (s38(2)(b))
iii) Compelled Rape (s38(3)(a))
iv) Compelled Rape (Failure to withdraw) (s38(3)(b))
v) Compelling Sexual Penetration (s38A)
vi) Indecent Assault (s39)
vii) Assault with Intent to Rape (s40)
9. Consent may be relevant to the following offences, as it is an element of the offence that there be an absence of consent in the particular circumstances identified in the offence provision:
i) Incest (s44 – as relevant to the defence of compulsion)
ii) Sexual Penetration of a Child Under the Age of 16 (s45)
iii) Indecent Act With Child Under the Age of 16 (s47)
iv) Sexual Penetration of a 16 or 17 Year Old Child (s48)
v) Indecent Act With 16 or 17 Year Old Child (s49)
vi) Indecent Act With 17 Year Old Child (s49 - repealed)
vii) Sexual Penetration of a Person with a Cognitive Impairment (s51(1), s52(1))
viii) Indecent Act with a Person with a Cognitive Impairment (s51(2), s52(2))
10. Offences contrary to s47A (Persistent abuse of child under the age of 16) and s49A (Facilitating Sexual Offences Against Children) may also require consent directions if the underlying offence is listed above.
Sexual Offences Where Awareness of Absence of Consent is Relevant
11. Sections 38, 38A, & 39 each expressly describes a fault element (or mens rea) associated with the complainant’s lack of consent. This is, the accused must have acted while aware that the complainant was not or might not have been consenting, or while not giving any thought to whether the complainant was consenting. None of the other consent-relevant offences listed above include “awareness of non consent” as a statutory fault element.
12. Whether this additional awareness element should be implied for other sexual offences has not been authoritatively determined. See Consent and Child Sexual Offences (below).
13. For rape, compelled sexual penetration and indecent assault the Crimes Amendment (Rape) Act 2007 introduced a new statutory fault element. For these offences it is no defence for accused persons to assert that they were not aware that the complainant might not have been consenting to the sexual act because they had not given any thought to whether or not the complainant was consenting (Crimes Act 1958 s38(2)(a)(ii), s38(4)(b)(ii), s38A(3)(b)(ii), s39(2)(b)).
14. It is unclear whether this additional fault element was acknowledged under the common law, and if so whether it should now be applied to offences where it is not a statutory element. See further the discussion in Bench Notes: Rape and Aggravated Rape (Pre 1/1/92). The charge book charges only include this fault element where it is a statutory fault element. If it is to be applied in other cases, the charge will need to be amended.
Sexual Offences Where Consent May be Relevant
15. For offences under sections 45, 47, 48, 49, 51 and 52, consent is not a defence unless the accused establishes an additional exculpatory matter, such as a belief that the child was aged 16 or over, or that the accused was married to the complainant. The relevant exculpatory matters are explained in the Bench Notes for each offence.
16. Where consent is a defence, the prosecution must prove that the complainant did not consent (Crimes Act 1958 ss45(4A), 47(3), 48(3), 49(3), 51(6), 52(4)).
17. It is an unresolved question whether, where consent is a defence, the prosecution must also prove that the accused was aware that the complainant was not consenting (see R v Deblasis & Deblasis (2007) 19 VR 128; R v Mark & Elmazovski [2006] VSCA 251).
18. In cases where the accused is charged with sexual penetration of a child or indecent act with a child, the judge should require the parties to identify before the trial whether consent will be in issue, or whether it will only be the additional exculpatory matters which are in issue (Criminal Procedure Act 2009 ss182, 183, 199). This will allow the judge to determine what directions are required in relation to consent and, if necessary, will allow the parties to challenge those intended directions on an interlocutory appeal (Criminal Procedure Act 2009 s295).
19. While the Crimes Act does not expressly refer to a fault element associated with consent, the prudent approach, which is taken in this Charge Book, is to adopt the fault element provided for offences under sections 38, 38A and 39.
Meaning of “Consent”
20. “Consent” is defined in s36 of the Crimes Act 1958 to mean “free agreement”. This definition of consent applies to all of the provisions in Subdivisions 8A to 8D of the Crimes Act (ss38-52).
21. Section 36 of the Crimes Act 1958 lists situations in which a person is regarded as not having given free agreement. This is not an exhaustive list.
22. Section 36 is not expressly drafted as a “deeming provision”, but it is relatively clear that it must now be treated this way. This interpretation is supported for trials commenced on or after 1 January 2008 by s37AAA(b) and (c) which require juries to be directed about the effect of s36 in terms that assume that s36 is a deeming provision on the question of whether the complainant consented to the sexual penetration (Wilson v R [2011] VSCA 328).
23. Section 36(a) states that submission in circumstances of “force or fear of force” is not consent. The only degree of violence necessary is whatever is necessary to achieve penetration (R v Bourke [1915] VLR 289; R v Burles [1947] VLR 392).
24. Section 36(b) states that submission because of “the fear of harm of any type to that person or someone else” is not consent. The section provides no assistance as to the nature of the harm contemplated. It may extend beyond physical or psychological injury, but that has not yet been determined.
25. Section 36(d) requires that a person is “so affected” by drugs or alcohol as to be incapable of free agreement. Mere impairment of judgement or reduction of inhibitions does not negate free agreement (R v Wrigley 9/2/1995 CA Vic). Note that intoxication can also be relevant to the issues of intention and mistaken belief (see Bench Notes: Common Law Intoxication).
26. Section 36(e) states that a person does not consent if they are incapable of understanding the sexual nature of the act. It must be proved that the person was unable to comprehend either that what is proposed is the physical fact of penetration, or that the act of penetration proposed is sexual (as distinct from an act of a totally different kind) (R v Morgan [1970] VR 337; Neal v R [2011] VSCA 172). The complainant’s understanding of the moral significance of the act is not relevant to this issue (R v Mobilio (1990) 50 A Crim R 170; R v Eastwood [1998] VSCA 42).
27. Section 36(e) relates to the complainant’s intellectual capacity. But “capacity to understand the sexual nature of the act” is not the only basis upon which a cognitive impairment may be relevant to consent. A person who understands the sexual nature of an act may be nevertheless incapable of freely agreeing to it, if that person is intellectually unable to make a refusal of consent or unable to understand his or her right to refuse consent (R v Mobilio (1990) 50 A Crim R 170; R v Eastwood [1998] VSCA 42).
28. In deciding whether a complainant who knew the nature and character of an act of sexual intercourse had the capacity to give real consent to it, the jury could have regard to such things as the complainant’s capacity to appreciate:
· that most of the community draw a distinction in quality between sexual acts and other acts of intimacy; and
· that a decision to consent or not involves questions of the morality or social acceptability of the conduct (R v Mobilio (1990) 50 A Crim R 170; R v Eastwood [1998] VSCA 42).
29. Section 36(g) says that a person does not consent where they have a mistaken belief that the sexual penetration was for either a medical or hygienic purpose. This section changed the pre-existing common law, which held that mistake as to the purpose of penetration did not deprive consent of reality (R v Mobilio (1990) 50 A Crim R 170. Note that the law stated in Mobilio as to capacity to consent is still correct).
30. There is nothing in s36 to deal with a situation where a woman is mistaken as to one of the characteristics of the accused, and it is this characteristic which leads her to consent. The common law holds that consent in such circumstances does not make the penetration unlawful (Papadimitropoulos v R (1957) 98 CLR 249).
31. The fact that a man has agreed to pay a specified sum in return for sex and leaves without paying does not mean that consent was vitiated by fraud (R v Linekar [1995] 3 ALL ER 69).
Directions on consent (s37AAA)
32. Where consent is in issue, and where relevant (but not otherwise) the judge must direct the jury in respect of the matters set out in s37AAA. They are:
(a) the meaning of consent set out in section 36;
(b) that the law deems a circumstance specified in section 36 to be a circumstance in which the complainant did not consent;
(c) that if the jury is satisfied beyond reasonable doubt that a circumstance specified in section 36 exists in relation to the complainant, the jury must find that the complainant was not consenting;
(d) that the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person's free agreement;
(e) that the jury is not to regard a person as having freely agreed to a sexual act just because—
(i) she or he did not protest or physically resist; or
(ii) she or he did not sustain physical injury; or
(iii) on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person (Crimes Act 1958 s37, s37AAA).
The significance of the absence of communication
33. Section 37AAA(d) addresses the circumstance where the jury finds that the complainant did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place.
34. It requires the judge to direct the jury that this fact “is enough to show that the act took place without [the complainant’s] free agreement” (see also Wilson v R [2011] VSCA 328).
35. Section 37AAA(d) is not a deeming provision and the onus remains on the prosecution to establish the absence of consent. There must be evidence that allows the jury to find an absence of consent and it is a question for the jury whether it is satisfied that there was an absence of consent (ISJ v R [2012] VSCA 321).
36. Where the possibility of consent is a real issue, the section only applies where there is positive evidence that the complainant did not say or do anything to indicate free agreement. It does not apply where there is an absence of evidence concerning the complainant’s conduct at the time of the alleged sexual act (ISJ v R [2012] VSCA 321).
37. Section 37AAA(d) does not affect the prosecution’s obligation to separately prove that the accused was aware that the complainant was not consenting or might not be consenting. The law does not require a person to satisfy himself or herself that the other person is consenting. The prosecution will fail to prove its case if it fails to establish the fault element due to the accused assuming that the complainant was consenting (Gordon v R [2010] VSCA 207).