Two defences to assault:

1. Consent: negatives actus reus.

2. Mistake as to consent: negatives mens rea.

This follows from the structure of the material elements of assault.


Two possible versions of the defences of mistake:

1. As governed by a subjective standard: honest & mistaken beliefs will exculpate.

2. As governed by an objective standard: only honest, mistaken and reasonable beliefs will exculpate.


273.2 It is not a defence to a charge under section 271, 272, or 273 [sexual assault, sexual assault with a weapon, and aggravated sexual assault, respectively] that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(a) the accused's belief arose from the accused's

(i) self-induced intoxication, or

(ii) recklessness or wilful blindness; or

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

On the distinction between (a)(ii) and (b) see Q3 and A3 in [Questions and Answers].

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