(1) Whether or not a person (A) reasonably believes that another person (B) is consenting to an act depends on the circumstances.
See section 36B for the effect of intoxication on the standard to be applied in determining whether a person has a reasonable belief.
(2) A's belief that B consents to an act is not reasonable if, within a reasonable time before or at the time the act takes place, A does not say or do anything to find out whether B consents to the act.
(3) Subsection (2) does not apply if—
(a) A has a cognitive impairment or mental illness (other than the effects of intoxication that is self-induced within the meaning of section 36B); and
(b) that cognitive impairment or mental illness is a substantial cause of A not saying or doing anything to find out whether B consents to the act.
(4) A bears the burden of proving on the balance of probabilities the matters referred to in subsection (3).
S. 36B (Heading) amended by No. 38/2022 s. 9.
S. 36B inserted by No. 47/2016 s. 5.