Last week consumers were introduced to the Sexual Offences Act, 2009 which is now in force. We dealt with rape and sexual offences. We now give some of the sections dealing with ‘consent.’
Section 5 Consent not inferred
Consent and belief in consent cannot be inferred by-
a) reason of silence or physical resistance on the part of the complainant; or
b) reason of sexual arousal including orgasm and ejaculation.

Belief in consent

6. (1) Where a defence of belief in consent is raised to the offence of rape or sexual assault, the belief must be objectively reasonable.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps the accused has taken to ascertain whether the complainant or the third person consents.
(3) It is not a defence to a charge of rape that the accused reasonably believed that the complainant consented to the sexual activity that forms the subject matter of the charge, where-

(a) the belief of the accused arose from the self-induced intoxication or reckless or willful blindness of the accused; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
Evidential presumptions about consent
7. (1) If in any proceedings for an offence under section 3 or 4 it is proved that –
(a) the accused did the sexual activity

(b) any of the circumstances specified in subsection (2) existed; and

(c) the accused knew that these circumstances existed.

The complainant is to be taken not to have consented to the sexual activity unless prima facie evidence is added to raise an issue as to whether the complainant consented, and the accused is to be taken not to have reasonably believed that the complainant consented unless prima facie evidence is added to raise an issue as to whether the accused reasonably believed it.

(2) The circumstances referred to in subsection (1) are that –

(a) any person was, at the time of the sexual activity or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against the complainant;

(b) any person was, at the time of the sexual activity or immediately before it began, causing the complainant to fear that violence was being used or that immediate violence would be used, against another person;

(c) the complainant was, and the accused was not, unlawfully detained at the time of the sexual activity;

(d) any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the sexual activity.

To be continued