It should be easy enough, shouldn’t it? Yes or no?
As always, life and the law are more complicated than that, and the issue of consent - in the context of alleged sexual offences - is not so simple.
What is consent?
A person consents if she or he agrees by choice, and has the freedom and capacity to make that choice.
Can a drunk person consent?
Yes, drunken consent is still consent, but this is where problems can arise. If a person loses their capacity to choose, through drink, then he or she is not consenting.
Consent is frequently the issue in many rape cases where it is one word against the other.
The Courts have identified the following focus points:
1. Did sexual intercourse take place?
2. Did the complainant consent to sexual intercourse?
3. Did the complainant have the freedom and capacity to consent?
4. Did the defendant reasonably believe that the complainant was consenting? (this does not apply in all cases).
At trial, it will be for the jury to determine issues of capacity and consent having heard all of the evidence.
How do you prove consent?
In the absence of a written contract, and even then, there could be doubts, it is for the jury to decide having heard the evidence.
In some cases, it is not enough for a defendant to simply say that he or she believed the other person was consenting, there must be evidence that he or she had a reasonable belief that there was consent. This would include considering any steps taken by the defendant to ascertain the complainant was consenting.
The situation could also arise where consent is given on condition, for example, that a condom is used. If one is not used, then the “consent” may be vitiated.
There have also been cases where a female has pretended to be a male and had intercourse on that basis. The defendant was guilty because the complainant said that she would not have consented if she had known that the defendant was female.
This article is a brief analysis of potential issues surrounding consent. As you can see, this is an area that would require careful assessment and expert advice.
The problem with many alleged sexual offences is that they require a jury to examine intimate factual scenarios, often clouded by drink or drugs, where there is seldom any independent evidence to assist one way or the other. It is our job to present the strongest case possible.