Criminal Code Act 1899

Circumstances in which a person does not consent to an act include the following—

the person does not say or do anything to communicate consent;

the person does not have the cognitive capacity to consent to the act;

the person is so affected by alcohol or another drug as to be incapable of consenting to the act;

the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act;Note—This circumstance may apply where a person gave consent when not so affected by alcohol or another drug as to be incapable of consenting.

the person is unconscious or asleep;

the person participates in the act because of force, a fear of force, harm of any type or a fear of harm of any type, whether to that person or someone else or to an animal or property, regardless of—

when the force, harm or conduct giving rise to the fear occurs; or

whether it is, or is a result of, a single incident or is part of an ongoing pattern;

Examples of harm—

• economic or financial harm

• reputational harm

• harm to the person’s family, cultural or community relationships

• harm to the person’s employment

• domestic violence involving psychological abuse or harm to mental health

• sexual harassment

the person participates in the act because of coercion, blackmail or intimidation, regardless of—

when the coercion, blackmail or intimidation occurs; or

whether it occurs as a single incident or as part of an ongoing pattern;

the person participates in the act because the person or another person is unlawfully confined, detained or otherwise deprived of their personal liberty;

the person participates in the act because the person is overborne by the abuse of a relationship of authority, trust or dependence;

the person participates in the act because of a false or fraudulent representation about the nature or purpose of the act, including about whether the act is for health, hygienic or cosmetic purposes;

the person participates in the act with another person because the person is mistaken—

about the identity of the other person; or

that the person is married to the other person;

the person is a sex worker and participates in the act because of a false or fraudulent representation that the person will be paid or receive some reward for the act;

the person participates in the act with another person on the basis that a condom is used for the act and the other person does any of the following things before or during the act—

does not use a condom;

tampers with the condom;

removes the condom;

becomes aware that the condom is no longer effective but continues with the act.

If a person, against whom an offence under this chapter is alleged to have been committed, suffers grievous bodily harm as a result of, or in connection with, the offence, the grievous bodily harm suffered is evidence of the lack of consent on the part of the person unless the contrary is proved.

This section does not limit the grounds on which it may be established that a person does not consent to an act.

In this section—sex worker means a person who provides services to another person that involve the person participating in a sexual activity with the other person for payment or reward. sch 1 pt 5 ch 32 s 348AA ins 2024 No. 5 s 13