2) Meaning of consent A person "consents" to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.
…the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity…
(a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity…
The law also states that:
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. §273.1(3)
Example: The Sexual Offence Special Provisions Act (1998) of Tanzania includes the positions of traditional healer and religious leader as positions of authority. Part I, 4 (3) (d) and (e).
Legislation on consent under coercive circumstances should describe a broad range of circumstances. It should reflect situations where the perpetrator used coercion, creates fear of violence, applies duress, psychological oppression, or abuses his power. Coercion can also occur by virtue of being in a coercive environment, such as detention. (See: Amnesty International, Rape and Sexual Violence: Human Rights Law and Standards in the International Criminal Court (2012).) Coercion can cover a wide range of behaviors, including intimidation, manipulation, threats of negative treatment (withholding a needed service or benefit), threats toward third parties, blackmail, and drug-facilitated sexual assault.
Example: the Combating of Rape Act, No 8, (2000) of Namibia includes an extensive description of coercive circumstances:
… (2) For the purposes of subsection (1) “coercive circumstances” includes, but is not limited to -
(a) the application of physical force to the complainant or to a person other than the complainant;
(b) threats (whether verbally or through conduct) of the application of physical force to the complainant or to a person other than the complainant;
(c) threats (whether verbally or through conduct) to cause harm (other than bodily harm) to the complainant or to a person other than the complainant under circumstances where it is not reasonable for the complainant to disregard the threats;
(d) circumstances where the complainant is under the age of fourteen years and the perpetrator is more than three years older than the complainant;
(e) circumstances where the complainant is unlawfully detained;
(f) circumstances where the complainant is affected by -
(i) physical disability or helplessness, mental incapacity or other inability (whether permanent or temporary); or
(ii) intoxicating liquor or any drug or other substance which mentally incapacitates the complainant; or
(iii} sleep, to such an extent that the complainant is rendered incapable of understanding the nature of the sexual act or is deprived of the opportunity to communicate unwillingness to submit to or to commit the sexual act;
(g) circumstances where the complainant submits to or commits the sexual act by reason of having been induced (whether verbally or through conduct) by the perpetrator, or by some other person to the knowledge of the perpetrator, to believe that the perpetrator or the person with whom the sexual act is being committed, is some other person;
(h) circumstances where as a result of the fraudulent misrepresentation of some fact by, or any fraudulent conduct on the part of, the perpetrator, or by or on the part of some other person to the knowledge or the perpetrator, the complainant is unaware that a sexual act is being committed with him or her;
(i) circumstances where the presence of more than one person is used to intimidate the complainant.
For other examples of legislation on coercive circumstances, see: the Criminal Code (1974) of Papua New Guinea, Section 347A; the Sexual Offences Act (2003) of Lesotho, Part I, 2 and Part II 6; the Sexual Offences Act (2003) of United Kingdom, Article 61.
Many states include a provision in their legislation that states that the judge in a relevant case must instruct the jury regarding the issue of consent.
192A Direction to jury in certain sexual offence trials
In a relevant case the judge shall direct the jury that a person is not to be regarded as having consented to an act of sexual intercourse or to an act of gross indecency only because the person:
(a) did not protest or physically resist;
(b) did not sustain physical injury; or
(c) had, on that or an earlier occasion, consented to:
(i) sexual intercourse; or
(ii) an act of gross indecency, whether or not of the same type, with the accused.
“…(d) that the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person’s free agreement;
(e) that the jury is not to regard a person as having freely agreed to a sexual act just because-
(i) she or he did not protest or physically resist; or
(ii) she or he did not sustain physical injury; or
(iii) on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person.” Section 37AAA.
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