NSW
Crimes Amendment (Consent - Sexual Assault Offences) Bill 2007
Negation of consent
Proposed section 61HA (4) and (5) provide that a person does not consent to sexual intercourse with another person:
(a) if the person does not have the capacity to consent, including because of age or cognitive incapacity, or
(b) if the person does not have the opportunity to consent because the person is unconscious or asleep, or
(c) if the person consents 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 because the person is unlawfully detained, or (e) if the person consents under a mistaken belief as to the identity of the other person, that the other person is married to the person or that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means).
The circumstances set out in paragraphs (c) and (e), above, replace similar provisions currently set out in section 61R (2).
Proposed section 61HA (6) provides that the grounds on which it may be established that a person does not consent to sexual intercourse include:
(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or
(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or
(c) if the person has sexual intercourse because of the abuse of a position of authority or trust.
Proposed section 61HA (7) provides that a person is not to be regarded as consenting to sexual intercourse by reason only of the fact that the person does not offer actual physical resistance to the sexual intercourse. This replaces a similar provision currently contained in section 61R (2) (d).
Proposed section 61HA (8) makes it clear that the above provisions do not limit the grounds on which it may be established that a person does not consent to sexual intercourse.
Viewed 07/07/08 at 20:31