When the possibility of consent is (or is not) enough

Since 1991, s36 of the Crimes Act has contained an expanded statutory definition of the circumstances in which a person is deemed not to consent to sexual intercourse. Many of these are common sense propositions and indeed, I've wondered from time to time why it is that Parliament needs to tell us, for example, that a person who submits to intercourse under duress, is taken not to consent. But it is there and courts need to make sense of it.

In Getachew v R [2011] VSCA 164, the court curtailed the operation of s36, by effectively confining its operation to the factual question of whether a person is consenting, and not the allied question of whether the accused was aware the complainant was not or might not be consenting.

Recklessness and indifference

The law recognises a significant difference between intention and recklessness. An intention involves an actual desire to achieve an outcome, while recklessness involves an awareness that conduct is likely to produce a certain result. The High Court's classic judgment in Crabbe v R (1985) 156 CLR 464 states that: