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Consent

For various offences it may be a defence for the accused to claim that the complainant gave their consent. This defence is particularly associated with assault and sexual assault.

Unless the Crown can negatives consent there can be no proof of assault. This principle has been upheld in various cases. For example, players in a sport accept a risk that and generally accept that, opposing players will not always abide by the rules. The Crown must then negative the assault within the terms of the consent expressly or implicitly given.

When dealing with assault matters, if the injury inflicted on the victim involved permanent injury the defence of consent can not apply.

In relation to sexual activity it can be a defence to sexual assault/ rape cases if a person consents to the sexual activity. Under section 46 of the Criminal Law Consolidation Act (SA) a person consent to sexual activity if the person freely and voluntarily aggress to sexual activity. Submission due to fear is not consent and if you are regarded as underage you are incapable of providing consent.

A person will not consent if there is:

  • an application of unwanted force;
  • express or implied threat to apply force;
  • express or implied threat to degrade, humiliate, disgrace or harass.
  • a person is unlawfully detained; or
  • the person is unconscious, asleep or intoxicated to the point of being incapable of freely and voluntarily agreeing.

(This list is not exhaustive)

Consent regarding theft and other property offences can be a defence if the accused honestly believed through conduct or words of the ‘owner’ that they had consent. However this defence will not apply if the an accused person obtained consent by dishonest deception.

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