Can Someone Have A Mistaken Belief In Consent For Sexual Activity?

Honest but Mistaken Belief is a defence that may be raised in sexual assault cases. If the accused honestly believed the complainant was consenting, he would not have formed the requisite intent to be guilty of the offence. However, it is not a defence if the mistaken belief arose from:

  • The accused's self-induced intoxication;
  • The accused's recklessness or wilful blindness;
  • The accused did not take reasonable steps, in the circumstances know to him at the time, to ascertain that the complainant was consenting; or
  • There is evidence that the complainant's voluntary agreement was affirmatively expressed by words or actively expressed by conduct.


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