South Australian Current Acts South Australian Current Acts46—Consent to sexual activity
(1) In this
section—
"sexual activity" includes sexual intercourse.
(2) For the purposes
of this Division, a person consents to sexual activity if the person freely
and voluntarily agrees to the sexual activity.
(3) Without limiting
subsection (2), a person is taken not to freely and voluntarily agree to
sexual activity if—
(a) the
person agrees because of—
(i)
the application of force or an express or implied threat
of the application of force or a fear of the application of force to the
person or to some other person; or
(ii)
an express or implied threat to degrade, humiliate,
disgrace or harass the person or some other person; or
(b) the
person is unlawfully detained at the time of the activity; or
(c) the
activity occurs while the person is asleep or unconscious; or
(d) the
activity occurs while the person is intoxicated (whether by alcohol or any
other substance or combination of substances) to the point of being incapable
of freely and voluntarily agreeing to the activity; or
(e) the
activity occurs while the person is affected by a physical, mental or
intellectual condition or impairment such that the person is incapable of
freely and voluntarily agreeing; or
(f) the
person is unable to understand the nature of the activity; or
(g) the
person agrees to engage in the activity with a person under a mistaken belief
as to the identity of that person; or
(ga) the
person agrees to engage in the activity because of a misrepresentation
(whether express or implied) as to the use of a condom during the activity; or
(h) the
person is mistaken about the nature of the activity.
Example—
A person is taken not to freely and voluntarily agree to sexual activity if
the person agrees to engage in the activity under the mistaken belief that the
activity is necessary for the purpose of medical diagnosis, investigation or
treatment, or for the purpose of hygiene.