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CRIMINAL CODE 1899 - SECT 348AA
Circumstances in which there is no consent
348AA Circumstances in which there is no consent
(1) Circumstances in which a person does not consent to an act include the
following— (a) the person does not say or do anything to communicate
consent;
(b) the person does not have the cognitive capacity to consent to
the act;
(c) the person is so affected by alcohol or another drug as to be
incapable of consenting to the act;
(d) the person is so affected by alcohol
or another drug as to be incapable of withdrawing consent to the act;
Example— This circumstance may apply where a person gave consent when
not so affected by alcohol or another drug as to be incapable of consenting.
(e) the person is unconscious or asleep;
(f) 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— (i) when the force, harm or conduct giving rise to the fear
occurs; or
(ii) whether it is, or is a result of, a single incident or is
part of an ongoing pattern;
Example— • 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
(g) the person participates in the act because of coercion,
blackmail or intimidation, regardless of— (i) when the coercion, blackmail
or intimidation occurs; or
(ii) whether it occurs as a single incident or as
part of an ongoing pattern;
(h) the person participates in the act because
the person or another person is unlawfully confined, detained or otherwise
deprived of their personal liberty;
(i) the person participates in the act
because the person is overborne by the abuse of a relationship of authority,
trust or dependence;
(j) 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;
(k) the person participates in the act with another person because the person
is mistaken— (i) about the identity of the other person; or
(ii) that the
person is married to the other person;
(l) 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;
(n) 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— (i) does not use a condom;
(ii) tampers with the condom;
(iii) removes the condom;
(iv) becomes aware that the condom is no longer
effective but continues with the act.
(2) 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.
(3) This section does not limit the
grounds on which it may be established that a person does not consent to an
act.
(4) 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.
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