Under the Criminal Code (WA), the offences of sexual penetration without consent (s 326) and indecent assault (s 324) do not require proof that the accused knew the complainant was not consenting. The mental element is confined to the requirement of a willed act (s 23), with the accused's state of mind as to consent being relevant only through the defence of honest and reasonable mistake (s 24) or in the context of an attempt (s 4). The common law presumption of mens rea from He Kaw Teh does not apply to Code offences, or is rebutted by the clear statutory language. For attempted sexual offences, however, intention to penetrate without consent must be proved.
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