Sexual intercourse without consent

Sexual intercourse without consent — from 1 June 2022

[5-900] Introduction

Last reviewed: April 2024

The Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (the amending Act) commenced on 1 June 2022 and replaces the definition of consent in the former Crimes Act 1900, s 61HE with Pt 3, Div 10, Subdiv 1A (ss 61HF–61HK).

These provisions apply to basic and aggravated offences of sexual assault (Crimes Act, ss 61I, 61J, 61JA), sexual touching (ss 61KC, 61KD) and carrying out a sexual act (ss 61KE, 61KF) committed on and from 1 June 2022: s 61HG.

The amending Act is largely based on recommendations made by the New South Wales Law Reform Commission in Report 148: Consent in relation to sexual offences, September 2020.

The Act also inserted new jury directions on misconceptions about consent in sexual assault trials, for trials commencing on and from 1 June 2022, into the Criminal Procedure Act 1986 in ss 292–292E: see further [5-200] Directions — misconceptions about consent in sexual assault trials.

Section 61HF provides that a purpose of Subdiv 1A is to recognise that:

(a): every person has a right to choose whether or not to participate in a sexual activity
(b): consent to a sexual activity is not to be presumed
(c): consensual sexual activity involves ongoing and mutual communication, decision-making and free and voluntary agreement between the persons participating in the sexual activity.

“Sexual activity” in Subdiv 1A means sexual intercourse, sexual touching or a sexual act: s 61HH.

Of the concepts addressed in s 61HF, the Attorney General said that while these were not new, expressly stating them in the legislation “enhances the communicative model of consent that is embodied in the criminal law, guiding the application of the law and aiding the understanding of consent in the general community”: Second Reading Speech, Legislative Assembly, Debates, 20 October 2021, p 7508.

[5-910] Suggested direction — basic offence — sexual intercourse without consent (s 61I) — offences from 1 June 2022

Last reviewed: September 2024

Notes:

1.: It is good practice to provide the elements of the offence to the jury in written form. The list of elements below could form the basis of this document.
2.: It is suggested that consideration be given to whether it is more helpful to explain the competing cases of the parties overall for the jury after identifying the separate elements of the offence or as the directions are given for each element.
3.: It is unnecessary and unhelpful to direct the jury about elements of consent not relevant to the issues in the case: R v Mueller (2005) 62 NSWLR 476 at [3]–[4] and [42].
4.: The suggested direction is framed in terms of what the Crown is required to prove. It is a matter of discretion as to how often it is appropriate to remind the jury that the accused is not obliged to prove anything.

The accused is charged with sexual intercourse without consent knowing the complainant was not consenting. The Crown case is [briefly outline the incident/s to which the charge/s relate].

Elements

To prove the accused is guilty, the Crown must prove beyond reasonable doubt each of the following three elements which make up the offence:

1.: at the time and place specified in the indictment, the accused had sexual intercourse with the complainant;
2.: without the complainant’s consent to that act of intercourse; and
3.: the accused knew the complainant did not consent.

You can only find the accused guilty if the Crown proves each element beyond reasonable doubt. If the Crown fails to prove any one of these elements, you must find the accused not guilty.

1. The accused had sexual intercourse with the complainant

This element concerns the nature of the act alleged in the indictment. The Crown must prove beyond reasonable doubt that an act of sexual intercourse occurred.

Sexual intercourse includes [describe the relevant act of intercourse from the definition in s 61HA(1) and summarise the evidence relied upon by the Crown

(a)

the penetration to any extent of the genitalia or anus of a person by—

(i) any part of the body of another person, or

(ii) any object manipulated by another person, or

(b)

the introduction of any part of the genitalia of a person into the mouth of another person (often referred to as an act of fellatio), or

(c): the application of the mouth or tongue to the female genitalia (often referred to as an act of cunnilingus), or
(d): the continuation of sexual intercourse [as I have outlined]].

[If applicable — where part of body involved in act of intercourse is surgically constructed (s 61H(4))

It is not relevant that a part of the body involved in the act of intercourse was surgically constructed or not.]

[If applicable — lack of full penetration (s 61HA(1)(a)), ejaculation or sexual gratification

The Crown does not have to prove that full penetration occurred and/or that the accused ejaculated and/or that the act of intercourse was for the accused’s sexual gratification.]

[If applicable — penetration solely for proper medical or hygienic purposes (s 61HA(2))

Penetration carried out solely for a proper [medical and/or hygienic] purpose is not sexual intercourse. The Crown must prove beyond reasonable doubt that the penetration was not solely for a proper [medical and/or hygienic] purpose and may do so by proving either that there was no proper [medical and/or hygienic] purpose or that, in addition to any proper [medical and/or hygienic] purpose, the penetration was also for another purpose. Examples of where penetration would not be solely for a [medical and/or hygienic] purpose would be if it was also for sexual gratification, and/or to inflict humiliation upon the complainant. Summarise the evidence and relevant arguments of the parties.]

2. Without the complainant’s consent

This element concerns the complainant’s state of mind. The Crown must prove beyond reasonable doubt that the complainant did not consent [to the act of intercourse].

Everyone has a right to choose whether or not to participate in sexual intercourse. A person cannot presume that another person is consenting. Consensual sexual intercourse involves ongoing and mutual communication and decision-making and free and voluntary agreement between the persons participating in the sexual intercourse. [s 61HF].

[If required — (s 292A Criminal Procedure Act 1986 — circumstances in which non-consensual activity occurs): However, you should bear in mind that non-consensual activity can occur in many different circumstances and between different kinds of people including people who know one another, or are married to one another, or who are in an established relationship with one another.] [See [5-200]]

A person consents to sexual intercourse if, at the time of the act of intercourse, they freely and voluntarily agrees to that act of intercourse. [s 61HI(1)] Consent can be given verbally or it can be expressed by actions. However, a person who does not offer physical or verbal resistance to a sexual activity is not, by reason only of that fact, to be taken to consent to the sexual activity. [s 61HI(4)]

[If applicable — Circumstances in which there is no consent – s 61HJ

The law provides that circumstances in which a person does not consent to sexual intercourse include if you are satisfied beyond reasonable doubt that the person [refer only to those that apply]:

(a)

does not say or do anything to communicate consent,

(b)

does not have the capacity to consent to the act of intercourse,

(c)

is so affected by alcohol or another drug as to be incapable of consenting to the act of intercourse,

(d)

is unconscious or asleep,

(e)

participates in the act of intercourse because of force, fear of force or fear of serious harm of any kind to themself, another person, an animal or property (regardless of when the force or the conduct giving rise to the fear occurred or whether it occurred as a single instance or as part of an ongoing pattern),

(f)

participates in the act of intercourse because of coercion, blackmail or intimidation (regardless of when the coercion, blackmail or intimidation occurred or whether it occurred as a single instance or as part of an ongoing pattern),

(g)

participates in the act of intercourse because they or another person is unlawfully detained,

(h)

participates in the act of intercourse because they are overborne by the abuse of a relationship of authority, trust or dependence,

(i)

participates in the act of intercourse because they are mistaken about the nature of the act of intercourse,

(j)

participates in the act of intercourse because they are mistaken about the purpose of the act of intercourse (including about whether the act of intercourse is for health, hygienic or cosmetic purposes),

(k)

participates in the act of intercourse with another person because they are mistaken about the identity of the other person or because they are mistaken that they are married to the other person, or

(l)

participates in the act of intercourse because of a fraudulent inducement. [If appropriate: A misrepresentation about a person’s income, wealth or feelings [refer only to that or those which apply] is not a “fraudulent inducement”].

Summarise the evidence and relevant arguments of the parties.]

[If applicable — persuasion: Consent that is obtained after persuasion is still consent provided that ultimately it is given freely and voluntarily.]

[If applicable — withdrawal of consent: A person may withdraw consent to an act of intercourse at any time: [s 61HI(2)]. If the act of intercourse occurs, or continues, after consent has been withdrawn then it occurs without consent: [s 61HI(3)]. If the Crown has proved beyond reasonable doubt that the complainant withdrew consent and that the act of intercourse occurred or continued after that point in time, then you would find the occurrence or continuation of the act of intercourse was without the complainant’s consent.

Summarise the evidence and relevant arguments of the parties.]

[If applicable — Consent to a different act of intercourse (s 61HI(5)): A person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity. There is evidence the complainant may have consented to [describe relevant sexual activity]. If you decide they may have consented to that activity, it does not follow that for that reason only that they consented to the act of intercourse alleged by the Crown. [Summarise the evidence and relevant arguments of the parties.]]

[If applicable — Consent to sexual activity with accused on a different occasion (s 61HI(6)(a)): A person who consents to a sexual activity with a person on one occasion is not, by reason only of that fact, to be taken to consent to a sexual activity with that person on another occasion. There is evidence the complainant may have consented to [describe sexual activity and occasion] with the accused. If you decide they may have consented to that activity, it does not follow that for that reason only that they consented to the act of intercourse alleged by the Crown. Summarise the evidence and relevant arguments of the parties.]

[If applicable — Consent to sexual activity with another person on same or another occasion (s 61HI(6)(b)):

A person who consents to a sexual activity with a person is not, by reason only of that fact, taken to consent to a sexual activity with another person on that or another occasion. There is evidence the complainant may have consented to [describe sexual activity and occasion] with [name of person]. If you decide they may have consented to that activity, it does not follow that for that reason only they consented to the act of intercourse with the accused alleged by the Crown. Summarise the evidence and relevant arguments of the parties.]

3. The accused knew the complainant did not consent

This element concerns the accused’s state of mind. The Crown must prove beyond reasonable doubt that the accused knew the complainant did not consent to the act of intercourse alleged.

This is a question about what the accused’s state of mind actually was. It is not a question about what you or anyone else would have known, thought or believed in the circumstances. It is what the accused knew, thought or believed.

The Crown has no direct evidence about what the accused’s state of mind was at that time. The Crown asks you to infer or conclude that the accused knew the complainant was not consenting on the basis of the facts and circumstances which it has sought to prove occurred.

[Give direction as to Inferences [see [3-150] or remind jury if already given.]

For the purpose of deciding whether the Crown has proved this element, you must consider all the circumstances of the case, including what, if anything, the accused said or did: [s 61HK(5)(a)]. [Add, if appropriate — self-induced intoxication: However, intoxication of the accused that was self-induced must be ignored. If you consider the accused was intoxicated by voluntarily drinking alcohol [or taking drugs], you must decide if the Crown has proved this element by considering what their state of mind would have been if they had not been intoxicated: [s 61HK(5)(b)]].

The Crown will have proved the accused knew the complainant did not consent if it proves that [refer only to those of the following that arise from the evidence]:

1.: the accused actually knew the complainant did not consent to the act of intercourse; or
2.: the accused was reckless as to whether the complainant consented to the act of intercourse; or
3.: any belief the accused had, or may have had, that the complainant consented to the act of intercourse was not reasonable in the circumstances.

It is important to bear in mind that it is for the Crown to prove this. As you are well aware, there is no obligation upon the accused to prove anything.

[Actual knowledge — s 61HK(1)(a): Summarise the evidence and relevant arguments of the parties.]

[Recklessness — s 61HK(1)(b)]

To establish that the accused was reckless as to whether the complainant consented to the act of intercourse, the Crown must prove, beyond reasonable doubt, either:

(a): that the accused failed to consider whether or not the complainant was consenting at all, and just went ahead with the act of intercourse, [where appropriate even though the risk the complainant was not consenting would have been obvious to someone with the accused’s mental capacity had they turned their mind to it], or
(b): the accused realised the possibility that the complainant was not consenting but went ahead with the act of intercourse regardless of whether the complainant was consenting or not.

[Summarise the evidence and relevant arguments of the parties.]

[Belief in consent that was not reasonable in the circumstances — s 61HK(1)(c)]

If, on the basis of the evidence led in the trial, you decide there is a possibility the accused had, or may have had, a belief that the complainant consented, the Crown must prove beyond reasonable doubt that the belief was not reasonable in the circumstances. The Crown case is that you would find that any such belief was not reasonable in the circumstances because [state Crown’s contention].

[If appropriate (s 61HK(2)): A belief that the complainant consented to the act of intercourse is not reasonable if the Crown satisfies you beyond reasonable doubt the accused did not, within a reasonable time before, or at the time of, the act of intercourse, say or do anything to find out if the complainant consented.

Whether it was reasonable in the circumstances for the accused to believe the complainant was consenting to the act of intercourse is judged according to community standards. You ask yourself what would an ordinary person in the accused’s position have believed at the relevant time having regard to all the circumstances of the case [If appropriate: other than the accused’s self-induced intoxication]

[Summarise the evidence and relevant arguments of the parties.]

[If applicable — cognitive or mental health impairment as a substantial cause of the accused not saying or doing anything (s 61HK(3)–(4)):

If the Crown has proved beyond reasonable doubt that the accused did not say or do anything to ascertain whether the complainant consented to the act of intercourse, then that would establish that the belief of the accused that the complainant was not consenting was not reasonable. However, this would not be the case if the accused was suffering from a [cognitive/mental health] impairment at the time of the act of intercourse and that impairment was a substantial cause of them not saying or doing anything to ascertain whether the complainant consented to that act of intercourse.

[Adopt so much of the definitions of mental health impairment and cognitive impairment from ss 4C and 23A(8) and (9) Crimes Act as appropriate — see further [4-304].]

This is a matter where the accused must prove on the balance of probabilities both that:

1.: The accused was suffering from a [cognitive/mental health] impairment at the time of the act of intercourse; AND
2.: Their [cognitive/mental health] impairment was a substantial cause of the accused not saying or doing anything to ascertain whether the complainant consented to the act of intercourse.

[Summarise the evidence and relevant arguments of the parties.]

If the accused has not proved both these matters on the balance of probabilities, then the Crown will have established beyond reasonable doubt that their failure to say or do anything to ascertain whether the complainant consented to the act of intercourse was such that their belief the complainant was not consenting was not reasonable in the circumstances.

If the accused has proved both these matters on the balance of probabilities, then you cannot use the fact the accused did not do or say anything to ascertain whether the complainant consented to the act of intercourse in considering whether the Crown has proved beyond reasonable doubt that the accused’s belief in consent was not reasonable. You must put that fact to one side and consider whether the Crown has proved beyond reasonable doubt that the accused’s belief in consent was not reasonable because of other facts and circumstances.

[For aggravated forms of the offence add from [5-840] as appropriate.]

[5-920] Notes related to consent

Last reviewed: September 2024

1.

Although in the following notes reference is made to the NSWLRC’s Report and to the Second Reading Speech for the amending Act, it is not suggested these can necessarily be relied on to resolve issues that may arise when interpreting these provisions: Interpretation Act 1987, s 34(1)(b). Additionally, where the language used for particular provisions in Pt 3, Div 10, Subdiv 1A of the Crimes Act 1900 is somewhat similar to the previous legislation, it should not be assumed the meaning ascribed will automatically conform with previous case law. See GS v R [2022] NSWCCA 65 at [38]–[41] and Totaan v R [2022] NSWCCA 75 at [78]–[83] for discussion of approaches to construction of criminal statutes.

2.

Section 61HI, provides for the meaning of consent generally, and states:

(1)

A person “consents” to a sexual activity if, at the time of the sexual activity, the person freely and voluntarily agrees to the sexual activity.

(2)

A person may, by words or conduct, withdraw consent to a sexual activity at any time.

(3)

Sexual activity that occurs after consent has been withdrawn occurs without consent.

(4)

A person who does not offer physical or verbal resistance to a sexual activity is not, by reason only of that fact, to be taken to consent to the sexual activity.

(5)

A person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity.

Example— A person who consents to a sexual activity using a condom is not, by reason only of that fact, to be taken to consent to a sexual activity without using a condom.

(6)

A person who consents to a sexual activity with a person on one occasion is not, by reason only of that fact, to be taken to consent to a sexual activity with—

(a): the person on another occasion, or
(b): another person on that or another occasion.

3.

The phrase “at the time of the relevant sexual activity” was added to s 61HI(1) at the recommendation of the NSWLRC (Report 148: Consent in relation to sexual offences, September 2020 at p xiii). It did not appear in s 61HE(2) (rep).

4.

When describing how free and voluntary consent might be communicated (s 61HI(1)), the Attorney General said this may include “reciprocating body language or affirming remarks throughout a sexual encounter”: Second Reading Speech, Legislative Assembly, Debates, 20 October 2021, at p 7507.

5.

Section 61HJ(1) provides that a person does not consent to a sexual activity in the circumstances listed in s 61HJ(1)(a)–(k). This differs from, for example, s 61HE(8)(rep) which provided for grounds where it “may be” established that a person does not consent to a sexual activity. The list of circumstances in s 61HJ(1) is not exhaustive: s 61HJ(2).

6.

There is a distinction between the circumstances listed in ss 61HJ(1)(a)–(d) and the balance. Section 61HJ(1)(a)–61HJ(1)(d) does not contain a causal component. For example, s 61HJ(1)(d) provides that a person does not consent to a sexual activity if “the person is unconscious or asleep”. Accordingly, if the Crown proves beyond reasonable doubt, for example, that the complainant was unconscious, then there is no consent. By comparison, there is a causal component for each of the circumstances listed in s 61HJ(1)(e)–61HJ(1)(k).

7.

A number of the circumstances listed in s 61HJ(1) were previously in s 61HE(5)–(8) (rep) but not all are replicated in identical terms. The following new circumstances provide that a person does not consent to sexual activity if they:

do not say or do anything to communicate consent: s 61HJ(1)(a). This is intended to address what is referred to as the “freeze” response, where a person may not physically or verbally resist an assault: Second Reading Speech, above, p 7507; NSWLRC Report, above, at 6.25–6.57; see also s 61HI(4). How this relates to s 61HK(2), which states that an accused’s belief in consent to sexual activity is not reasonable if they did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person consented, may require consideration in the particular circumstances of a given case.
are unconscious or asleep: s 61HJ(1)(d). This is intended to clarify that consent is only present if the person is awake and conscious at the time of the sexual act, regardless of anything they may have said or done in the past: Second Reading Speech, above, p 7509.
participate in the sexual activity because of force, fear or force or fear of serious harm of any kind to the person, another person, an animal or property regardless of when the force or conduct giving rise to the force occurred, or whether it occurs as a single instance or as part of an ongoing pattern: s 61HJ(1)(e). While similar to s 61HE(5)(c) (rep), s 61HJ(1)(d) is broader in scope.
participate in the sexual activity because of coercion, blackmail or intimidation whether it occurs as a single instance or as part of an ongoing pattern: s 61HJ(1)(f). This, and s 61HJ(1)(e), are intended to capture conduct which may amount to coercive control, not “mere begging and nagging”: Second Reading Speech, above, p 7509. It is not limited to domestic and family violence.
participate in the sexual activity because of a fraudulent inducement: s 61HJ(1)(k). See further below.

Fraudulent inducement

8.

Section 61HJ(1)(k) is in different terms to its predecessor, s 61HE(6)(d) (rep), which stated that a person did not consent to a sexual activity if they had “any other mistaken belief about the nature of the activity induced by fraudulent means”.

9.

A “fraudulent inducement” is not defined. While s 61HJ(3) provides that a “fraudulent inducement” does not include a misrepresentation about a person’s income, wealth or feelings, the conduct that might amount to a fraudulent inducement is otherwise unlimited. However, the Attorney-General said the relevant conduct must amount to a “very serious deceit”. The example given was those cases where sex workers are fraudulently promised payment for sexual services. The Attorney said that it was unlikely that s 61HI(1)(k) would extend to “pick-up lines or white lies”: Second Reading Speech, above, p 7510.

10.

The use of “because of” in s 61HJ(1)(k) makes clear that there is a causal connection between the fraudulent inducement and the complainant’s participation in the relevant sexual activity. This differs from the common law which provided that consent to an act of sexual intercourse was vitiated by fraud when the fraud concerned the nature and character of the act: see R v Clarence (1888) 22 QBD 23 at 43; Papadimitropoulos v The Queen (1957) 98 CLR 249 at 260–261; see also Michael v Western Australia [2007] WASCA 66 at [314]–[333] for a discussion of the common law and its application.

11.

Some guidance about conduct that might constitute a “fraudulent inducement”, may be found in existing Australian case law in those jurisdictions where the relevant legislation is similar to that of NSW: see for example s 319(2)(a) Criminal Code (WA) and s 67(1) Crimes Act 1900 (ACT); cf s 348 Criminal Code 1899 (Qld) and the discussion of some of the differences by Refshauge ACJ in R v Tamawiwy (No 2) (2015) ACTLR 82 at [37]–[52].

12.

In Higgins v Western Australia [2016] WASCA 142, Mazza J described a fraudulent or deceitful representation as one “which is false in fact and which the maker knows at the time of making it to be false.”: at [142]. By making the representation, the accused must intend to obtain the complainant’s consent to the relevant sexual activity when they would not otherwise have consented: Higgins v Western Australia at [142].

13.

In Michael v Western Australia, the majority concluded that the actions of the accused, who pretended he was a police officer, to induce the complainants, who were both sex workers, to engage in sexual intercourse for a reduced, or no, fee was sufficient to negate consent: at [88] (Steytler, P); [164]–[166] (Miller JA); cf Heenan AJA at [376]. In R v Tamawiwy (No 2), the accused represented to the complainant that he was a woman with two young female friends, all three of whom were willing to have sexual intercourse with the complainant provided he first engaged in sexual activity with the accused (introduced by a false name). Refshauge ACJ, who was determining a no case submission, described the representations as “a serious deception” and “elaborate hoax” and concluded that a jury might properly find they amounted to fraudulent misrepresentations: [58], [64]–[66]. Onnis v R [2013] VSCA 271, which concerned multiple case of procuring sexual penetration by fraud (Crimes Act 1958 (Vic), s 57(2)), involved conduct similar to that in R v Tamawiwy (No 2): see [7]–[16]. In DPP v Macfie [2012] VSCA 314, where the offender was charged with procuring sexual penetration by fraudulent means, he induced young girls to have sex with him by telling them he was a member of the Mafia, promising them things such as money and iPhones, also saying that a condition of them joining the Mafia was that they had sex with him.

14.

The Crown should precisely identify the fraudulent inducement from the outset of the trial: R v Tamawiwy (No 2) at [15].

Knowledge about consent

15.

Section 61HK(1) provides that the accused is taken to know that another person does not consent to a sexual activity if—

(a): the accused actually knows the other person does not consent to the sexual activity, or
(b): the accused is reckless as to whether the other person consents to the sexual activity, or
(c): any belief that the accused has, or may have, that the other person consents to the sexual activity is not reasonable in the circumstances.

16.

With the exception of the addition of the word “actually” in s 61HK(1)(a), s 61HK(1)(a) and 61HK(1)(b) are in relevantly identical terms to s 61HE(3)(a) and 61HE(3)(b) (rep).

17.

In R v Tolmie (1995) 37 NSWLR 660 at 672D Kirby P stated that recklessness is established “where the accused has not considered the question of consent and a risk that the complainant was not consenting would have been obvious to someone with the accused’s mental capacity if they had turned their mind to it” (emphasis added). In Tuuholoaki v R [2024] NSWCCA 135 at [274] Adamson JA (Wilson and Faulkner JJ agreeing) held the italicised words above were used in Tolmie in the context of a consideration of the law and there was no indication they were intended to form part of directions to a jury. It was not considered in Tuuholoaki or in Lee v R [2023] NSWCCA 203 that the words are required in directions in every case. The suggested direction at [5-910] allows for the words to be used in appropriate cases.

18.

Whether an accused’s belief as to consent was “not reasonable in the circumstances” involves a hybrid subjective/objective test. As to the subjective aspect, the relevant belief is that of the accused: see O’Sullivan v R [2012] NSWCCA 45 at [124]–[126]. The onus is on the Crown to prove beyond reasonable doubt that the accused’s belief was not reasonable in the circumstances. If there is something in the evidence that may give rise to a possibility the accused had a belief the complainant was consenting, a direction will be required as to the need for the Crown to prove beyond reasonable doubt that such a belief was not a reasonable one. There is no onus on the accused. Assistance with the concept of “reasonableness” might be derived from Aubertin v Western Australia (2006) WAR 87 at [25]–[44]; see also Doran v Director of Public Prosecutions [2019] NSWSC 1191 at [36]–[47].

19.

In determining whether the accused’s belief was “not reasonable in the circumstances”, s 61HK(2) states that a belief is not reasonable if the accused:

… did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person consents to the sexual activity.

20.

A “reasonable time” is not defined.

21.

Section 61HK(3) provides that s 61HK(2) does not apply if, at the time of the relevant sexual activity, the accused had a cognitive impairment or a mental health impairment, and the impairment was a substantial cause of the accused not saying or doing anything. “Mental health impairment” is defined in s 4C Crimes Act. “Cognitive impairment” is defined, in this context, by reference to s 23A(8) of the Crimes Act: s 61HK(3)(a)(i). Both definitions are identical to those found in ss 4 and 5 Mental Health and Cognitive Impairment Forensic Provisions Act 2020. See [4-304] “Statutory definitions of mental health and cognitive impairments” in Procedures for fitness to be tried (including special hearings). The onus of establishing one of the matters referred to in s 61HK(3) is on the accused on the balance of probabilities: s 61HK(4). It is noted that the definition of “cognitive impairment” which applies in s 61HK(3) is that set out in s 23A(8) of the Crimes Act and not the definition of “cognitive impairment” which otherwise applies in Div 10 of Pt 3, which is that set out in s 61HD. The reason for the distinction appears to be that s 61HK(3)(a) concerns cognitive impairment of an accused person, whereas the other references to cognitive impairment in Div 10 are references to the cognitive impairment of the victim of sexual offences.