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Non - Consent to sexual intercorse can be used as a defence

Some defence lawyers are so creative that they can construct evidence of consent from a victim’s lack of active expression of non-consent.

That is, some lawyers strive to make a jury believe that the victim gave consent to the sexual intercourse initiated and performed by the accused because the victim did not, at any time, actively expressed his or her non-consent to the sexual intercourse. The viability of this defence would depend upon the factual circumstances availing in each particular case.

This defence of lack of active expression of non-consent on the part of the victim has been used by those accused in the sexual assault of a minor. Some try to prove that the infant or minor must have given consent to the sexual intercourse because he or she did not expressly or actively express his non-consent.

When the accused is a person in authority over the infant or minor such as a teacher, a relative or a baby sitter, then even if the infant or minor victim did not actively express non-consent, the victim’s young age and immaturity renders him or her incapable of giving consent.

This may be a valid defence if the accused is an infant or minor himself. In this case when both the accused and the victim were infants or minors, then their sexual inexperience would render them incapable of understanding each other’s sexual intent or sexual acts and neither would be capable of giving or expressing consent or non-consent.

For instance, when the victim is a six year old and the accused is a five year old and during play, roughhousing or even a quarrel, the accused inserted an object into the anus or genitalia of the victim neither the victim nor the accused had the maturity or experience from which consent or non-consent can be inferred.

This defence cannot avail if there is a disparity in the age of the victim and the accused even if they are both infants or minors. For instance, if the victim is 5 and the accused is 13, then the disparity in age, build and strength of the parties would show that there is an element of power exerted by the older infant or minor over the younger infant or minor. This is especially true when the accused is a brother, cousin or uncle of the victim. In this instance, that defence of lack of active expression of non-consent is not available.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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