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Amendment of Act of 1990
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48. The Act of 1990 is amended by the substitution of the following section for section 9:
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“9. (1) A person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act.
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(2) A person does not consent to a sexual act if—
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(a) he or she permits the act to take place or submits to it because of the application of force to him or her or to some other person, or because of the threat of the application of force to him or her or to some other person, or because of a well-founded fear that force may be applied to him or her or to some other person,
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(b) he or she is asleep or unconscious,
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(c) he or she is incapable of consenting because of the effect of alcohol or some other drug,
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(d) he or she is suffering from a physical disability which prevents him or her from communicating whether he or she agrees to the act,
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(e) he or she is mistaken as to the nature and purpose of the act,
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(f) he or she is mistaken as to the identity of any other person involved in the act,
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(g) he or she is being unlawfully detained at the time at which the act takes place,
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(h) the only expression or indication of consent or agreement to the act comes from somebody other than the person himself or herself.
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(3) This section does not limit the circumstances in which it may be established that a person did not consent to a sexual act.
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(4) Consent to a sexual act may be withdrawn at any time before the act begins, or in the case of a continuing act, while the act is taking place.
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(5) Any failure or omission on the part of a person to offer resistance to an act does not of itself constitute consent to that act.
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(6) In this section—
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‘sexual act’ means—
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(a) an act consisting of—
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(i) sexual intercourse, or
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(ii) buggery,
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(b) an act described in section 3(1) or 4(1) of this Act, or
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(c) an act which if done without consent would constitute a sexual assault;
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‘sexual intercourse’ shall be construed in accordance with section 1(2) of the Principal Act.”.
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