Informed consent to the risk of HIV infection is a defence to a charge of recklessly endangering a person through unprotected sexual intercourse in Victoria, but is NOT a defence to intentional infection. The Crown must prove beyond reasonable doubt either that the complainant did not give informed consent or that the accused did not honestly believe informed consent had been given. Awareness by an accused of a circumstance of deemed non-consent under s 36 of the Crimes Act 1958 does not automatically establish awareness of non-consent for the purposes of the mens rea of rape; the jury must consider the evidence as a whole including any evidence of belief in consent. A belief by the accused that the complainant was consenting precludes a finding that the accused was aware the complainant might not be consenting.
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