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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
CRIMINAL CODE AMENDMENT (CONSENT)
BILL 2003
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CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Schedule 1 amended (Criminal Code)
[Bill 102]-X
2
CRIMINAL CODE AMENDMENT (CONSENT)
BILL 2003
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to amend the Criminal Code Act 1924
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
Short title
1. This Act may be cited as the Criminal Code
Amendment (Consent) Act 2003.
Commencement
2. This Act commences on the day on which this Act
receives the Royal Assent.
Principal Act
3. In this Act, the Criminal Code Act 1924* is referred to
as the Principal Act.
*No. 69 of 1924
[Bill 102] 3
s. 4 No. Criminal Code Amendment (Consent) 2003
Schedule 1 amended (Criminal Code)
4. Schedule 1 to the Principal Act is amended as follows:
(a) by omitting section 2A and substituting the
following section:
Consent
2A. (1) In the Code, unless the contrary
intention appears, "consent" means free
agreement.
(2) Without limiting the meaning of
"free agreement", and without limiting what
may constitute "free agreement" or "not free
agreement", a person does not freely agree to
an act if the person
(a) agrees or submits because of force,
or the fear of force, to him or her
or to another person; or
(b) agrees or submits because of a
threat of any kind against him or
her or against another person; or
(c) agrees or submits because he or
she or another person is
unlawfully detained; or
(d) agrees or submits because he or
she is overborne by the nature or
position of another person; or
(e) agrees or submits because of the
misrepresentation or fraud of
another person; or
4
2003 Criminal Code Amendment (Consent) No. s. 4
(f) is mistaken about the nature or
purpose of the act or the identity
of another person; or
(g) is asleep, unconscious or so
affected by alcohol or another drug
as to be unable to form a rational
opinion in respect of the matter for
which consent is required; or
(h) is incapable of understanding the
nature of the act.
(3) If a person, against whom a crime is
alleged to have been committed under
chapters XIV or XX, suffers grievous bodily
harm as a result of, or in connection with, such
a crime, the grievous bodily harm so suffered
is evidence of the lack of consent on the part of
that person unless the contrary is shown.
(b) by inserting the following section after section
14:
Mistake as to consent in certain sexual
offences
14A. In proceedings for an offence against
section 124, 125B, 127, 127A or 185 where
consent is in issue, the mistaken belief of the
accused may not be taken to be honest and
reasonable if
(a) the accused's belief arose out of
self-induced intoxication,
recklessness or wilful disregard; or
(b) the accused did not take
reasonable steps, in the
circumstances known to him or
5
s. 4 No. Criminal Code Amendment (Consent) 2003
her at the time of the offence, to
ascertain that the complainant
was consenting to the act.
(c) by inserting the following section after section
371:
Special direction to jury
371AA. In proceedings for an offence against
section 124, 125B, 127, 127A or 185, the judge
when instructing the jury as required by
section 371(j) must, in a relevant case, include
the following directions or directions that have
the same effect and substance as the following
directions:
Directions to Jury
1. The complainant is not to be regarded as having
consented to the sexual act only because she or he
(a) did not say or do anything to indicate
that she or he did not consent; or
(b) did not protest or physically resist; or
(c) was not physically injured; or
(d) on that or an earlier occasion, consented
to another sexual act of the same type as
the subject of the complaint, or another
type, with the defendant or another
person.
2. The fact that the complainant did not say or do
anything to indicate that she or he was consenting to
the sexual act which is the subject of the complaint is
normally enough to indicate that she or he did not
consent.
6 Government Printer, Tasmania