Section 61HE Crimes Act 1900
Consent in Sexual Assault Cases

Section 61HE of the Crimes Act 1900 contains the definition of consent in sexual assault cases, and reads as follows:

61HE Consent in Relation to Sexual Offences

(1) Offences to which section applies This section applies for the purposes of the offences, or attempts to commit the offences, under sections 61I, 61J, 61JA, 61KC, 61KD, 61KE and 61KF.

(2) Meaning of “consent” A person
“consents” to a sexual activity if the person freely and voluntarily agrees to the sexual activity.

(3) Knowledge about consent A person who without the consent of the other person (the “alleged victim” ) engages in a sexual activity with or towards the alleged victim, incites the alleged victim to engage in a sexual activity or incites a third person to engage in a sexual activity with or towards the alleged victim, knows that the alleged victim does not consent to the sexual activity if:
(a) the person knows that the alleged victim does not consent to the sexual activity, or
(b) the person is reckless as to whether the alleged victim consents to the sexual activity, or
(c) the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity.

(4) For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:
(a) including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity, but
(b) not including any self-induced intoxication of the person.

(5) Negation of consent A person does not consent to a sexual activity:
(a) if the person does not have the capacity to consent to the sexual activity, including because of age or cognitive incapacity, or
(b) if the person does not have the opportunity to consent to the sexual activity because the person is unconscious or asleep, or
(c) if the person consents to the sexual activity because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or
(d) if the person consents to the sexual activity because the person is unlawfully detained.

(6) A person who consents to a sexual activity with or from another person under any of the following mistaken beliefs does not consent to the sexual activity:
(a) a mistaken belief as to the identity of the other person,
(b) a mistaken belief that the other person is married to the person,
(c) a mistaken belief that the sexual activity is for health or hygienic purposes,
(d) any other mistaken belief about the nature of the activity induced by fraudulent means.

(7) For the purposes of subsection (3), the other person knows that the person does not consent to the sexual activity if the other person knows the person consents to the sexual activity under such a mistaken belief.

(8) The grounds on which it may be established that a person does not consent to a sexual activity include:
(a) if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug, or
(b) if the person consents to the sexual activity because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or
(c) if the person consents to the sexual activity because of the abuse of a position of authority or trust.

(9) A person who does not offer actual physical resistance to a sexual activity is not, by reason only of that fact, to be regarded as consenting to the sexual activity.

(10) This section does not limit the grounds on which it may be established that a person does not consent to a sexual activity.

(11) In this section:
“sexual activity” means sexual intercourse, sexual touching or a sexual act.

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