2AConsent

2A Consent

[Section 2A Inserted by No. 71 of 1987, s. 4 ][Section 2A Amended by No. 61 of 2004, s. 4, Applied:17 Dec 2004]

(1)  In the Code, unless the contrary intention appears, "consent" means free agreement.

(2)  Without limiting the meaning of "free agreement", and without limiting what may constitute "free agreement" or "not free agreement", a person does not freely agree to an act if the person –

(a) does not say or do anything to communicate consent; or

(b) agrees or submits because of force, or a reasonable fear of force, to him or her or to another person; or

(c) agrees or submits because of a threat of any kind against him or her or against another person; or

(d) agrees or submits because he or she or another person is unlawfully detained; or

(e) agrees or submits because he or she is overborne by the nature or position of another person; or

(f) agrees or submits because of the fraud of the accused; or

(g) is reasonably mistaken about the nature or purpose of the act or the identity of the accused; or

(h) is asleep, unconscious or so affected by alcohol or another drug as to be unable to form a rational opinion in respect of the matter for which consent is required; or

(i) is unable to understand the nature of the act.

(2A)  [Section 2A Amended by No. 13 of 2022, s. 4, Applied:22 Aug 2022] Without limiting the application of subsection (2) to an act of sexual intercourse, a person does not freely agree to an act of sexual intercourse with another person if the person says or does anything to communicate to the other person that a condom must be used for that sexual intercourse and the other person intentionally –

(a) does not use a condom; or

(b) tampers with the condom; or