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The definition of consent to sexual activity can be found under Section 46 of the Criminal Law Consolidation Act 1935. Sexual activity, which includes sexual intercourse, is considered consensual if the person consenting does so freely and voluntarily.

Circumstances in which a person is taken not to freely and voluntarily agree to sexual activity include, but are not limited to:

  • An agreement due to application of force (or an express or implied threat), or fear of force to the person, or some other person.
  • A threat (express or implied) to degrade, disgrace, harass or humiliate the person or some other person.
  • If the person is unlawfully detained
  • If the sexual activity occurs when the person is asleep, unconscious, or intoxicated (by any substance) to the point of being incapable of freely and voluntarily agreeing to the activity
  • If the person agrees to the activity with a mistaken belief as to the identity of the offending person
  • If the person does not understand the nature of the activity
  • If the person is mistaken as to the nature of the activity.

An example of the last point – if a person is mistaken about the nature of the activity – may include circumstances where a person agrees to engage in sexual activity in the mistaken belief that the activity is necessary for the purpose of a medical diagnosis, for the purpose of hygiene or for some other treatment.

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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