New South Wales Consolidated Acts

CRIMES ACT 1900 - SECT 61HK

61HK Knowledge about consent

(1) A person (the
"accused person" ) is taken to know that another person does not consent to a sexual activity if--

(a) the accused person actually knows the other person does not consent to the sexual activity, or

(b) the accused person is reckless as to whether the other person consents to the sexual activity, or

(c) any belief that the accused person has, or may have, that the other person consents to the sexual activity is not reasonable in the circumstances.

(2) Without limiting subsection (1)(c), a belief that the other person consents to sexual activity is not reasonable if the accused person did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person consents to the sexual activity.

(3) Subsection (2) does not apply if the accused person shows that--

(a) the accused person had at the time of the sexual activity--

(i) a cognitive impairment within the meaning of section 23A(8) and (9), or

(ii) a mental health impairment, and

(b) the impairment was a substantial cause of the accused person not saying or doing anything.

(4) The onus of establishing a matter referred to in subsection (3) lies with the accused person on the balance of probabilities.

(5) For the purposes of making any finding under this section, the trier of fact--

(a) must consider all the circumstances of the case, including what, if anything, the accused person said or did, and

(b) must not consider any self-induced intoxication of the accused person.