One important issue that arises during trials is not whether the sexual conduct occurred, but whether the sexual conduct was consented to by both parties. A possible defence is that the complainant is not being honest about there being no consensual sexual conduct. Another defence is that the complainant did not provide consent, but the accused has an honest but mistaken belief of consent.
The defence of mistaken belief in consent is available where the complainant denied there was consent, or there was an incapacity of consent which was interpreted by the accused as consent. The accused must also show that there was evidence of ambiguity or equivocality showing the possibility of mistaken belief. However, this only applies if the accused was not willfully blind or reckless regarding consent.
The defence of mistaken belief features the following elements:
- The accused mistakenly believed the complainant consented to sexual activity
- The victim was incapable of providing consent, did not provide consent, or refused to provide consent
- Evidence which describes how a lack of consent could have been construed by the accused as consent, and that the accused was not reckless or willfully blind as to whether the victim provided consent