South Australian Current Acts

EVIDENCE ACT 1929 - SECT 34N

34N—Directions relating to consent in certain sexual cases

        (1)         Subject to subsection (2), in a trial of a charge of a sexual offence where a lack of consent of a person in relation to a particular sexual activity is in issue, the judge must direct the jury as to the following matters:

            (a)         that there is no typical or normal response to non-consensual sexual activity and the person is not to be regarded as having consented to the sexual activity the subject of the charge merely because—

                  (i)         the person did not say or do anything to indicate that he or she did not freely and voluntarily agree to the sexual activity; or

                  (ii)         the person did not protest to or physically resist the sexual activity; or

                  (iii)         the person was not physically injured in the course of, or in connection with, the sexual activity; or

                  (iv)         1 or more of the following circumstances apply:

                        (A)         the person freely and voluntarily agreed to sexual activity of a different kind with the defendant;

                        (B)         the person had freely and voluntarily agreed to sexual activity (whether or not of the same kind) with the defendant on an earlier occasion;

                        (C)         the person had, on that or some other occasion, freely and voluntarily agreed to sexual activity (whether or not of the same kind) with another person;

            (b)         that non-consensual sexual activity can occur in many different circumstances and is not always perpetrated by a stranger in a public area;

            (c)         that non-consensual sexual activity can occur between different kinds of people including—

                  (i)         people who know one another; or

                  (ii)         people who are married to one another; or

                  (iii)         people who are in an established relationship with one another,

and is not less serious just because the people involved have any such relationship;

            (d)         that—

                  (i)         trauma may affect people differently, which means that some people may show obvious signs of emotion or distress when giving evidence in court about an alleged sexual offence but others may not; and

                  (ii)         the presence or absence of emotion or distress does not necessarily mean that a person is not telling the truth about an alleged sexual offence;

            (e)         that it should not be assumed that a person consented to sexual activity because the person—

                  (i)         wore particular clothing or had a particular appearance; or

                  (ii)         consumed alcohol or any other drug; or

                  (iii)         was present in a particular location (either generally or at a particular time).

        (2)         The judge must, in a trial referred to in subsection (1), give each of the directions referred to in that subsection as may be applicable in the circumstances of the particular case.

        (2a)         Despite any other provision of this Act, or any other Act or law, a court may, in a trial of a charge of a sexual offence, receive expert evidence about any matter referred to in this section.

        (3)         In this section—

"consent", in relation to a sexual activity, has the same meaning as in the Criminal Law Consolidation Act 1935 ;

"sexual activity" includes sexual intercourse (within the meaning of the Criminal Law Consolidation Act 1935 ).