chapter  6
16 Pages

Stories of mistaken consent: still in the shadow of Morgan

Over the past 20 years there have been significant changes to Australian sexual offences legislation with respect to the definition of consent. Most legislative definitions of consent in the context of rape now require that the victim has the capacity to consent and that the consent is ‘free and voluntary’ or the product of ‘free agreement’ (McSherry and Naylor, 2004: 210; Sheehy, 1996: 92). Such terminology reflects a communicative model of consent where parties should be in mutual agreement before they proceed (Chamallas, 1988: 853; Schulhofer, 1998: 85). Most legislative definitions also list a number of matters that vitiate consent, including force, threats and fraud.1