A sex act is unlawful if there is no consent. Consent is not complicated. There is no consent if:
- Alice did not consent, and
- Bob knows she didn’t consent.
And of course vice-versa.
The suggested judicial direction is helpful (my emphasis).
Without the complainant’s consent
This element concerns the complainant’s state of mind. The Crown must prove beyond reasonable doubt that the complainant did not consent [to the act of intercourse].
Everyone has a right to choose whether or not to participate in sexual intercourse. A person cannot presume that another person is consenting. Consensual sexual intercourse involves ongoing and mutual communication and decision-making and free and voluntary agreement between the persons participating in the sexual intercourse. [s 61HF].
However, you should bear in mind that non-consensual activity can occur in many different circumstances and between different kinds of people including people who know one another, or are married to one another, or who are in an established relationship with one another.
A person consents to sexual intercourse if, at the time of the act of intercourse, [she/he] freely and voluntarily agrees to that act of intercourse. [s 61HI(1)] Consent can be given verbally or it can be expressed by actions. However, a person who does not offer physical or verbal resistance to a sexual activity is not, by reason only of that fact, to be taken to consent to the sexual activity. [s 61HI(4)]
A person who consents to a sexual activity with a person on one occasion is not, by reason only of that fact, to be taken to consent to a sexual activity with that person on another occasion. There is evidence the complainant may have consented to [describe sexual activity and occasion] with the accused. If you decide the complainant may have consented to that activity, it does not follow that for that reason only [she/he] consented to the act of intercourse alleged by the Crown. Summarise the evidence and relevant arguments of the parties.]
On the facts you have stated, there is no consent.
- "A person cannot presume that another person is consenting." Bob presumed.
- There was no "ongoing and mutual communication and decision-making and free and voluntary agreement between the persons participating".
- The fact that they are married or in a long-term (or short-term) sexual relationship is irrelevant.
- There was no verbal consent nor consent by action.
- The fact that there was no resistance is irrelevant
- The fact that Alice has consented to sex in similar circumstances in the past is irrelevant.
The Crown would need to prove testimony that these were the facts. This is not an easy thing to do and is the reason why sexual assault conviction rates are appallingly low.
The primary and perhaps only evidence for these facts will be Alice's testimony. Alice's evidence will be tested through cross-examination, and the jury will need to weigh Alice's credibility and decide if the prosecution has met its burden. Basically, does the jury believe Alice?
Bob does not have to testify; if he is wise, he won't. Particularly if he actually thinks "consent is assumed to be present in the absence of expressed/indicated objection" - if he says that shit on the stand he's basically handed the prosecution proof of the next element.
** The accused knew the complainant did not consent**
This element concerns the accused’s state of mind. The Crown must prove beyond reasonable doubt that the accused knew the complainant did not consent to the act of intercourse alleged.
The Crown has no direct evidence about what the accused’s state of mind was at that time. The Crown asks you to infer or conclude that the accused knew the complainant was not consenting on the basis of the facts and circumstances which it has sought to prove occurred.
[Give direction as to Inferences [see [3-150] or remind jury if already given.]
For the purpose of deciding whether the Crown has proved this element, you must consider all the circumstances of the case, including what, if anything, the accused said or did: [s 61HK(5)(a)].
The Crown will have proved the accused knew the complainant did not consent if it proves that [refer only to those of the following that arise from the evidence]:
the accused actually knew the complainant did not consent to the act of intercourse; or
the accused was reckless as to whether the complainant consented to the act of intercourse; or
any belief the accused had, or may have had, that the complainant consented to the act of intercourse was not reasonable in the circumstances.
It is important to bear in mind that it is for the Crown to prove this. As you are well aware, there is no obligation upon the accused to prove anything.
On the facts stated Bob did not know that Alice consented - because she didn't.
Alice and Bob's mutual attitude that "consent is assumed to be present in the absence of expressed/indicated objection" is at the least, unreasonable and may well be reckless. The Crown would love to get that before the jury - it basically proves that Bob's belief in Alice's consent was unreasonable. It will be far more useful coming from Bob than from Alice - they need to show that this is Bob's position because Alice is not on trial. Yet, but if she keeps thinking that's how consent works, it's only a matter of time before she is.