Defence of Consent
In Australia, the offence of rape allows for a legal defence if the victim gave their consent to sexual intercourse. Rape is also known as sexual penetration without consent or sexual assault, and consent is the sole legal defence to these charges. Rape is defined differently in different jurisdictions, resulting in variations in the operation of the consent defence across different states and territories. This page outlines how the defence of consent applies to rape charges across Australia.
Definitions of rape
Rape in all jurisdictions includes a physical element and in some states and territories, it also entails a mental element.
The physical element is sexual intercourse or penetration without the other person’s consent. The mental element of rape varies between different states and territories.
What is consent?
Consent is defined as free agreement, free and voluntary agreement, or consent given freely and voluntarily.
Each state and territory has laws specifying the age at which a young person can legally give consent to engage in sexual activity with an adult. Depending on the state or territory and the circumstances, the relevant age of consent is 16, 17, or 18.
In all jurisdictions, an person is not considered to have given consent if they submit due to force, fear of harm, fear of force, unlawful detention, or if they are unconscious, asleep, or under the influence of alcohol or drugs, making them incapable of consenting. Certain pieces of legislation at the state and territory level explicitly outline scenarios where an individual does not give consent, such as being mistaken about the nature or identity of the act, being incapable of comprehending the nature of the act, failing to express or indicate consent, or retracting their consent.
Defence of consent in Victoria
Under section 38 of the Crimes Act 1958, a person commits rape if they engage in sexual penetration with another person without their consent and do not have a reasonable belief that the other person has given their consent.
In Victoria, the defence of consent can be used if the victim gave their consent or if the accused had a reasonable belief that the victim was consenting.
Defence of consent in New South Wales
Under section 61I of the Crimes Act 1900 in New South Wales, sexual assault is defined as engaging in sexual activity with another person with knowledge that the other person has not given their consent.
In New South Wales, the defence of consent can be relied on if the alleged victim provided their consent or if the accused did not know that the other person did not consent.
Defence of consent in Queensland
In Queensland, under section 349 of the Criminal Code 1899, a person is guilty of rape if they engage in sexual intercourse with another person without that person’s consent.
If a person is charged with rape in Queensland, they can rely on the defence of consent if the alleged victim provided their consent. However, if the accused mistakenly believed that the other person was consenting, this is not a valid defence.
Defence of consent in the ACT
Under section 54 of the Crimes Act 1900 in the ACT, a person is guilty of sexual intercourse without consent if they engage in sexual intercourse with another person without that person’s consent and were reckless as to whether the other person had provided their consent.
In the ACT, the defence of consent can be used if the other person gave their consent or if the accused had a reasonable belief that the other person was providing their consent.
Defence of consent in Western Australia
In Western Australia, sexual penetration without consent is considered an offence under section 325 of the Criminal Code Act Compilation Act 1913. The offence does not require a mental element, but only that the accused engaged in sexual penetration without the other person’s consent.
The defence of consent can only be used in WA if the alleged victim actually provided their consent to engage in sexual activity. In a situation where the accused mistakenly believed that the other person was providing their consent, there is no valid defence.
Consent in Tasmania
In Tasmania, rape is an offence under section 185 of the Criminal Code 1924.
Rape occurs when a person has sexual intercourse with another person without that person’s consent.
The only legal defence to rape in Tasmania is that the alleged victim consented to sex with the accused. There is no defence where the accused mistakenly believed that the other person was consenting.
Consent in South Australia
In South Australia, rape is an offence under section 48 of the Criminal Law Consolidation Act 1935. Under that section, rape occurs when a person has sexual intercourse with another person knowing, or being recklessly indifferent to the fact that the other person does not consent.
The defence of consent applies if the alleged victim consented to sex or if the accused reasonably believed that they were consenting.
Consent in the NT
In the NT, sex without consent is an offence under section 192 of the Criminal Code 1983. Under that section, a person is guilty of an offence if they have sexual intercourse with another person without that person’s consent, knowing or being reckless as to lack of consent.
The defence of consent may be argued on the basis that the alleged victim consented to sex or that the accused reasonably believed that they were consenting.
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