Significant legislative reforms were introduced on 5 May 2022, when the Crimes (Consent) Amendment Bill 2022 was passed by the ACT Legislative Assembly. This Bill amended the Crimes Act 1900, providing a broader definition of consent.
Section 50A outlines the objectives of the consent provisions, aiming to highlight key principles about sexual consent:
- Consent must never be presumed; it must be explicitly given.
- Every individual has the right to choose not to engage in a sexual act.
- A consensual sexual act requires ongoing, mutual communication and decision-making between participants.
Section 50B defines consent in the context of sexual acts as an informed agreement that is:
- Freely and voluntarily given, and
- Clearly communicated through words or actions.
Section 67 explicitly clarifies circumstances under which a person does not consent to a sexual act such as when they are sufficiently intoxicated. These include, but are not limited to, situations where a person:
- Withdraws consent either verbally or through actions, before or during the act.
- Participates due to violence, force, or the threat thereof, directed at themselves, others, animals, or property.
- Is subjected to extortion, coercion, blackmail, intimidation, or fears public humiliation or disgrace.
- Is influenced by a threat of mental or physical harassment.
- Engages in the act due to force or fear.
- Is incapable of agreeing to the act because of intoxication.
- Is mistaken about the identity of the other person.
- Is deceived by fraudulent misrepresentation or intentional deception, such as being misled about the use of a condom.
- Is exploited due to an abuse of authority, trust, dependency, or a professional relationship.
- Lacks the capacity to consent due to mental incapacity, unconsciousness, or being asleep.
- Is subjected to sexual acts while being unlawfully detained or aware that another person is unlawfully detained.
‘Intoxication’ is defined as being intoxication because of the consumption of alcohol, a drug or any other substance.
These legislative changes underscore that consent must be clear, informed, and ongoing. Particularly, a person cannot legally give consent if they are significantly intoxicated or otherwise incapacitated, as they lack the ability to make an informed decision.
Section 67 states that if an accused person, knows or is reckless as to whether the consent has been caused by intoxication, the accused it to have taken that the other person does not consent to the act.
The legislature’s explanation of why these amendments were required and how they would operate were set out in the revised explanatory statement. The statement notes the amendments were not intended to introduce a higher test for the level of intoxication that negates consent than was currently provided for in the previous legislation. This was in accordance with the ACT Court of Appeal finding of Agresti v The Queen [2017] ACTCA 20 at [97] and [156]. The finding was that the complainant’s intoxication must be so substantial to cause the complainant to be unable to consent to the sexual act.
The question of whether a person is incapable of consenting to a sexual act because of intoxication, or if their intoxication is so substantial as to be unable to consent, may in some matters be complex and a matter of degree for a jury to consider. It may be difficult to prove a lack of consent through intoxication without a jury accepting expert testimony from a pharmacologist or other related expert about this issue.
NSW
In New South Wales, the Crimes Act 1900 was amended in 2022, which provided new bases for establishing vitiated consent, including when the complainant is intoxicated.
Consent in sexual activity is defined in section 61HI Crimes Act 1900, as involving a person who freely and voluntarily agrees to the sexual activity. Section 61HJ then provides circumstances in which there is no consent. One of these circumstances is when the complainant is so affected by alcohol or another drug as to be incapable of consenting to the sexual activity.
Both in the ACT and NSW, the amendments still require the prosecution to prove that the complainant was too intoxicated to consent to any sexual activity. This does not mean that a moderate amount of alcohol will mean a person is intoxicated and is unable to consent to sexual activity. The prosecution bears the onus of proving that the complainant was so intoxicated that they could not make a conscious decision to agree to sexual activity.
Examples of where a complainant could not reasonably consent to sexual activity might include:
- The complainant has passed out;
- The complainant behaving in such a way as to not have any awareness of their surroundings; or
- The person is falling over themselves, stumbling and does not have full control over their body movements.
The reforms were introduced to align with a broader commitment to fostering respectful relationships and safeguarding individuals from sexual violence. However, this does not change the fact that determining whether someone is intoxicated may be challenging and complex, particularly an accused who was also intoxicated. This is an evolving area of law that is continuously shaped by legislative changes and court decisions.
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney, NSW (02 9696 1361), Canberra (02 5104 9640), Perth (08 6255 6909) or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.
