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What if the offender claims the victim consented to sex?

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When a sexual assault or abuse case is heard in court, the accused may say they believed the victim consented to have sex with them.

Generally speaking, sexual assault is any type of unwanted sexual behaviour that makes someone feel uncomfortable, intimidated or afraid.

What is child abuse?

Child abuse is when children or young people are harmed, not protected or not taken care of. Child abuse can happen in many ways, for example: Physical abuse, Emotional abuse, Sexual abuse, Neglect.

The person the Police have charged with assaulting or sexually abusing you.

Agreed or said 'yes'.

In Victoria, Australia the law says that the prosecution legal team must prove one of two things to show that what the victim said happened, did happen:

  1. That the accused knew that the victim did not consent, or
  2. That the accused thought maybe the victim hadn’t consented, but went ahead anyway.

The jury is told that:

  • If the victim did not say or do anything to show they wanted to have sex, this means they did not consent to it.
  • If the victim didn’t fight back, or has no injuries, it doesn’t mean they wanted to have sex.
  • Just because the victim may have previously agreed to have sex with someone, it doesn’t mean that person can have sex with them whenever they want.

If the prosecution can show that the accused didn’t make reasonable efforts to find out if the victim was consenting, then they can be found guilty.

What law says about consent

In Victoria, Australia the law states:

  • If you are under 10 years old, no one can have sex with you or perform sexual acts in front of you.
  • If you are over 10 and under 16, only people who are no more than two years older than you can do sexual things with you.
  • If you are aged 16 or 17, no one who is in a position of care or responsibility can do sexual things with you.

The laws on sex might be different to this depending on where you live. In Australia you can find out the law for your state or territory by going to the lawstuff website. If you are from another country you can find out the 'age of consent' from the Avert website.

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For more information

For more information about this or to contact the South Eastern Centre Against Sexual Assault go to the SECASA website.