128A Allowing sexual activity does not amount to consent in some circumstances
  • (1) A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.

    (2) A person does not consent to sexual activity if he or she allows the activity because of—

    • (a) force applied to him or her or some other person; or

    • (b) the threat (express or implied) of the application of force to him or her or some other person; or

    • (c) the fear of the application of force to him or her or some other person.

    (3) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.

    (4) A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.

    (5) A person does not consent to sexual activity if the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.

    (6) One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.

    (7) A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.

    (8) This section does not limit the circumstances in which a person does not consent to sexual activity.

    (9) For the purposes of this section,—

    allows includes acquiesces in, submits to, participates in, and undertakes

    sexual activity, in relation to a person, means—

    • (a) sexual connection with the person; or

    • (b) the doing on the person of an indecent act that, without the person's consent, would be an indecent assault of the person.

    Section 128A: replaced, on 20 May 2005, by section 7 of the Crimes Amendment Act 2005 (2005 No 41).