Mistake of fact in relation to consent
348A Mistake of fact in relation to consent
This section applies for deciding whether, for section 24, a person charged with an offence under this chapter did an act under an honest and reasonable, but mistaken, belief that another person consented to the act.
In deciding whether a belief of the person was honest and reasonable, regard may not be had to the voluntary intoxication of the person caused by alcohol, a drug or another substance.
A belief by the person that another person consented to an act is not reasonable if the person did not, immediately before or at the time of the act, say or do anything to ascertain whether the other person consented to the act.
Subsection (3) does not apply if the person proves that—
the person had at the time of the act—
a cognitive impairment within the meaning of section 348B; or
a mental health impairment within the meaning of section 348C; and
the impairment was a substantial cause of the person not saying or doing anything.
The person bears the burden of proving the matters mentioned in subsection (4).
Evidence adduced by the person of the matters mentioned in subsection (4) must include evidence given by a person qualified to give expert evidence on the matters. sch 1 pt 5 ch 32 s 348A ins 2021 No. 7 s 9
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