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7.3.1.2 - Consent and Awareness of Non-Consent (Pre-1/07/15)

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  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:
    1. 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)). 
    2. 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. 
    3. 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.

    Commencement and Transition

  6. 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

  7. Consent will generally be relevant to the following offences, as it is an element of each offence that there be an absence of consent:
    1.  Rape (s38(2)(a))
    2. Rape (Failure to withdraw) (s38(2)(b))
    3. Compelled Rape (s38(3)(a))
    4. Compelled Rape (Failure to withdraw) (s38(3)(b))
    5. Compelling Sexual Penetration (s38A)
    6. Indecent Assault (s39)
    7. Assault with Intent to Rape (s40)
  8. 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:
    1. Incest (s44 – as relevant to the defence of compulsion)
    2. Sexual Penetration of a Child Under the Age of 16 (s45)
    3. Indecent Act With Child Under the Age of 16 (s47)
    4. Sexual Penetration of a 16 or 17 Year Old Child (s48)
    5. Indecent Act With 16 or 17 Year Old Child (s49)
    6. Indecent Act With 17 Year Old Child (s49 - repealed)
    7. Sexual Penetration of a Person with a Cognitive Impairment (s51(1), s52(1))
    8. Indecent Act with a Person with a Cognitive Impairment (s51(2), s52(2))
  9. 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

  10. 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.
  11. Whether this additional awareness element should be implied for other sexual offences has not been authoritatively determined. See Consent and Child Sexual Offences (below).
  12. 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)).
  13. 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 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

  14. 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 Charges and commentary for each offence.
  15. 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)).
  16. 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).
  17. 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).
  18. 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”

  19. “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).
  20. 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.
  21. 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) 33 VR 340).
  22. 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).
  23. 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.
  24. 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 Common Law Intoxication).
  25. 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) 32 VR 454). The complainant’s understanding of the moral significance of the act is not relevant to this issue (R v Mobilio [1991] 1 VR 339; R v Eastwood [1998] VSCA 42).
  26. 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 [1991] 1 VR 339; R v Eastwood [1998] VSCA 42).
  27. 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:
  28. 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 [1991] 1 VR 339. Note that the law stated in Mobilio as to capacity to consent is still correct).
  29. 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). 
  30. 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) 

  31. 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:
    1. the meaning of consent set out in section 36;
    2. that the law deems a circumstance specified in section 36 to be a circumstance in which the complainant did not consent;
    3. 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;
    4. 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;
    5. that the jury is not to regard a person as having freely agreed to a sexual act just because—
      1. she or he did not protest or physically resist; or 
      2. she or he did not sustain physical injury; or
      3. 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 

  32. 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.
  33. 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) 33 VR 340).
  34. 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) 38 VR 23).
  35. 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) 38 VR 23).
  36. 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).

    Contemporaneous indications of consent

  37. The Crimes (Sexual Offences) Act 2006 inserted into the former s37(1)(a) the phrase “at the time at which the act took place”. This was intended to make it clear that “consent to one act at one time is not consent to other acts at other times” (Explanatory Memorandum to the Crimes (Sexual Offences) Bill 2006).

    When should a s37AAA direction be given

  38. The judge must give a s37AAA direction if, and only if the direction is relevant to a fact in issue in the proceeding (Crimes Act 1958 s37(1)&(2)).
  39. A direction under s37AAA(d) will clearly need to be given if there is a dispute as to whether or not the complainant consented, and it has been claimed that the complainant did not say or do anything to indicate free agreement (see, e.g., R v Zilm (2006) 14 VR 11).

    Interaction between s37AAA and 37AA

  40. Prior to the commencement of the new s37, s37AAA and s37AA, the original s37 created mandatory directions in relation to both consent (s37(1)(a) & (b)), and the accused’s state of mind about the complainant’s consent (s37(1)(c)). 
  41. While s37AAA in terms refers only to the question of consent, it is likely that some of the matters listed in s37AAA (such as the significance of non-communication, non-resistance and prior consent) are also capable of affecting whether a belief in consent is reasonable and should be mentioned when giving directions under s37AA.

    Other directions on consent

  42. A judge must direct on consent with reference to the issues and evidence in the trial. In many trials the issue will not turn on the special cases described in s36. In those cases the standard charge should be adapted to focus on the true issue in the trial.

    Directions on the accused’s belief in consent (s37AA)

  43. In appropriate circumstances (see below) the judge must direct the jury in the terms described in s37AA, that is:

    [I]n considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider—

    1. any evidence of that belief; and 
    2. whether that belief was reasonable in all the relevant circumstances having regard to—
      1. in the case of a proceeding in which the jury finds that a circumstance specified in section 36 exists in relation to the complainant, whether the accused was aware that that circumstance existed in relation to the complainant; and
      2. whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and
      3. any other relevant matters.
  44. “Other relevant matters” under s37AA(b)(iii) may include a discussion of the impact of the accused’s intoxication on his or her capacity to interpret the complainant’s words or conduct, or on his or her formation of a belief in consent (Khan v R [2011] VSCA 286).

    Awareness and belief

  45. For the purposes of the fault element of rape, compelling sexual penetration and indecent assault, the accused’s awareness that the complainant is not or might not be consenting is the real issue (R v Getachew (2012) 248 CLR 22). It is unclear whether this is also the real issue in relation to any fault element involving consent for other sexual offences in sections 44 to 52.
  46. An assertion by the accused that s/he believed the complainant was consenting is relevant only to raising a reasonable doubt about whether s/he was aware that the complainant was not or might not be consenting (R v Getachew (2012) 248 CLR 22).
  47. The existence of a belief in consent is not necessarily inconsistent with the fault element. It is possible for the prosecution to prove that the accused was aware that the complainant was not or might not have been consenting even though the accused had some belief in consent (R v Getachew (2012) 248 CLR 22).
  48. For example, a belief that the complainant may have been or was probably consenting may not provide an answer to a charge of rape, because these states of mind may demonstrate that the accused was aware that the complainant might not be consenting or did not turn his or her mind to whether the complainant might not be consenting (R v Getachew (2012) 248 CLR 22).
  49. The judge should explain the difference between a “belief in consent” and an awareness that the complainant might not be consenting and that:

    It is for the prosecution to establish that the accused did not have a belief in consent that creates a reasonable doubt that he was aware that the complainant was not or might not be consenting. Whether the belief does create a doubt will depend upon the jury’s findings of fact as to the nature and extent of that belief (NT v R [2012] VSCA 213 at [16]).

    The significance of the reasonableness of the accused’s belief

  50. Section 37AA (like the former s37(1)(c)) directs the jury to consider the reasonableness of the accused’s belief in consent. However, this direction does not mean that the accused’s belief in consent is relevant only if it is reasonable. Instead, the reasonableness of belief is relevant only to the jury’s assessment of whether or not the belief was in fact held (DPP v Morgan [1976] AC 182; R v Ev Costa 2/4/1997 CA Vic; R v Saragozza [1984] VR 187; R v Zilm (2006) 14 VR 11; Worsnop v R (2010) 28 VR 187; R v Getachew (2012) 248 CLR 22).
  51. The reasonableness of the accused’s belief must be considered as “no more than a guide” as to whether the accused in fact believed that the complainant was consenting (R v Laz [1998] 1 VR 453).
  52. Judges should explicitly tell the jury that the reasonableness of the belief “is no more than a guide to whether the belief was in fact held” (R v Ev Costa 2/4/1997 CA Vic; R v Lucin 25/3/1994 CA Vic; R v Munday (2003) 7 VR 423; R v Zilm (2006) 14 VR 11).
  53. Judges will also need to tell the jury that the accused’s belief does not have to be reasonable as a matter of law, and that the ultimate question is whether prosecution has proven that, in fact, the accused was aware that the complainant was not consenting or might not be consenting (R v Munday (2003) 7 VR 423; R v Zilm (2006) 14 VR 11; R v Gose (2009) 22 VR 150; Wilson v R (2011) 33 VR 340).

    The significance of an awareness of a s36 circumstance

  54. An awareness of a circumstance listed in s36 is relevant to the reasonableness of a belief in consent. However, it is erroneous to tell the jury that, if the accused is aware that a s36 circumstance either applies to the complainant or might apply to the complaint, then the accused is aware that the complainant is not consenting or might not be consenting. Proof of the existence of a s36 circumstance combined with proof of the accused’s awareness of that circumstance does not remove the Crown’s obligation to prove the fault element (R v Getachew (2012) 248 CLR 22; Wilson v R (2011) 33 VR 340; Neal v R (2011) 32 VR 454).
  55. An accused may be aware of the possibility that a s36 circumstance exists without that awareness affecting his or her awareness of an absence of consent. Proof that the accused was aware that the complainant was not or might not be consenting must be assessed on the evidence as a whole (R v Getachew (2012) 248 CLR 22; Neal v R (2011) 32 VR 454; Wilson v R (2011) 33 VR 340; Brennan v R [2012] VSCA 151).
  56. For example, an accused may believe that the complainant had consented prior to falling asleep, and that the consent continued to operate while he or she was asleep. While Crimes Act 1958 s36(d) states that a person does not consent while he or she is asleep, the law does not deem the accused to be aware of this, and so the prosecution may not be able to prove that the accused was aware that the complainant was not or might not be consenting.
  57. The law requires juries to understand the distinction between:
  58. Awareness of the existence or possible existence of a s36 circumstance is merely a matter the jury must consider when deciding whether the prosecution has proven that the accused was aware that the complainant was not or might not be consenting. While proof that the accused was aware of the existence of a s36 circumstance may lead to an inference that the accused was aware that the complainant was not consenting, it will not necessarily do so in all cases (Roberts v R [2011] VSCA 162; Duwah v R [2011] VSCA 262; Wilson v R (2011) 33 VR 340; Brennan v R [2012] VSCA 151).
  59. However, if belief in consent is not raised as an issue at trial (either by assertion or by the evidence) proof that the complainant did not consent due to the existence of a s36 circumstance and proof that the accused was aware of that circumstance can, without more, demonstrate that the accused was aware that the complainant was not or might not be consenting (R v Getachew (2012) 248 CLR 22).

    When should the s37AA direction be given?

  60. The judge must give a s37AA direction if, and only if belief in consent is raised as an issue at the trial. This will occur when evidence is led or an assertion is made about the possibility that accused believed that the complainant was consenting to the sexual act (Crimes Act 1958 s37(1), s37AA. See also R v Getachew (2012) 248 CLR 22).
  61. Section 37(2) provides that a s37AA direction must not be given if it is “not relevant to the facts in issue in the proceeding”. Where there is no evidence of a belief in consent and no assertion of a belief in consent, the judge must not give a direction under s37AA (R v Getachew (2012) 248 CLR 22; ISJ v R (2012) 38 VR 23).
  62. The rules contained in sections 37(1) and (2) reflect the common law obligation to direct the jury on so much of the law as is necessary to enable them to determine the issues in the case (R v Yusuf (2005) 11 VR 492; Jabir & Ahmed v R [2010] VSCA 342).
  63. A judge only needs to direct the jury on “real issues” that plainly arise from the evidence, as distinct from remote or artificial possibilities (R v Getachew (2012) 248 CLR 22; R v Alexander [2007] VSCA 178).
  64. In assessing whether a matter is in issue, the court will have regard to the matters identified by the parties in accordance with Jury Directions Act 2015 s11 and the directions requested under Jury Directions Act 2015 s12. Where the case is conducted purely on the basis that the alleged conduct did not occur and the defence does not request directions on awareness of non-consent, then a s37AA direction will not be necessary (see Gul v R [2017] VSCA 153 at [39]-[40]).
  65. If the evidence of the accused’s belief is inseparable from the evidence that the complainant consented, it may not be necessary to direct the jury on considering the reasonableness of the accused’s belief. However, a direction will be required if there is evidence that supports a finding that the accused had a mistaken belief in consent (Jabir & Ahmed v R [2010] VSCA 342; Sibanda v R (2011) 33 VR 67; R v Bertrand (2008) 20 VR 222; R v Salih [2005] VSCA 282 per Harper AJA).
  66. A belief in consent usually arises out of some relationship, act or conduct. There must be some evidence underpinning a belief in consent beyond speculation. This might arise from some pre-existing relationship or conduct (Sibanda v R (2011) 33 VR 67).
  67. Where there is evidence of intoxication which is capable of showing that the accused’s mind was sufficiently “befuddled” to have formed a genuine but mistaken belief as to consent, the jury must be directed appropriately in relation to that evidence (R v Ev Costa 2/4/1997 CA Vic. See also: Common Law Intoxication).

    Direction on non-advertence

  68. There are no mandatory directions to be given in respect of the non-advertent mental state described in Crimes Act 1958 s38(2)(a)(ii), s38(4)(b)(ii), s38A(3)(b)(ii) and s39(2)(b).
  69. Section 37AA is the key provision concerning the directions to be given in respect of the accused’s awareness of the complainant’s state of consent. However, s37AA is solely concerned with the circumstance where “evidence is led or an assertion is made that the accused believed that the complainant was consenting to a sexual act”. As a result it has no relevance to directions to be given in respect of the possibility of non-advertence.

    Relating the law to the facts in issue

  70. Section 37(3) requires the judge to relate the directions in s37 to the facts in issue, and to the elements of the offence being tried in respect of which the direction is given, so as to aid the jury’s comprehension of the direction.
  71. The judge must relate the law to the facts in issue even where the evidence is brief (R v Yusuf (2005) 11 VR 492).
  72. The judge must relate the directions to any relevant facts which have been placed in issue in the proceeding, and not just to the ultimate issues comprising the elements of the offence (R v Yusuf (2005) 11 VR 492).
  73. The critical issues must be precisely identified in the course of the directions on the law, and must be highlighted by referring to the competing contentions and the evidence relevant to resolution of those issues. In particular, when the directions of law are given, there needs to be reference to the evidence of the complainant relevant to the critical issues. The issues of fact and law must also be related to the Record of Interview and the evidence of the accused (if any) as to their state of mind, and the factors that influenced it. The evidence must also be related to the ultimate issue of whether it has been established beyond reasonable doubt that the complainant consented and/or that the accused had the necessary state of mind concerning the absence of consent (R v Zilm (2006) 14 VR 11).
  74. Judges may also relate their directions to events occurring after the alleged offence, as long as that evidence constitutes part of the whole context in which the alleged offending occurred (R v Salih [2005] VSCA 282). 75. If a judge tells the jury that the reason for giving these directions is that they are required by law, the judge must also explain to the jury that these are matters which will guide them in their determination of whether the relevant elements of the charge have been established (Defina v R 3/3/1993 CA Vic).

 

Last updated: 2 October 2017

See Also

7.3.1 - Consent and Consent-related Fault Element

7.3.1.1 - Consent and reasonable belief in consent (From 1/7/15)

7.3.1.3 - Charge: Belief in consent (Pre-1/07/15)