Sexual assault is defined by the law as having sexual intercourse with another person without their consent, and knowing that they have not consented.
In many sexual assault trials, questions are raised about whether the person charged honestly believed that the complainant was consenting, or whether they were reckless to the possibility that there was no consent.
In New South Wales, the question of whether or not the complainant consented is left to the fact-finder, which is the jury unless the trial is being conducted by a ‘judge alone’.
The fact-finder must consider the defendant’s state of mind, and whether their belief was reasonable based on all the facts and circumstances of the case.
In a sexual assault trial, the prosecution must proven beyond a reasonable doubt that the complainant did not consent, and that the defendant knew or was reckless to the possibility that they did not consent.
Because there are usually many other factors at play in a sexual assault case, and generally no witnesses, the court often has to weigh up the complainant’s version of events against that of the alleged offender.
In these situations, ascertaining whether or not someone gave consent can become difficult.
Consent in NSW
In New South Wales, consent is taken to have occurred where both parties provide ‘free and voluntary agreement.’
This definition is mirrored in Commonwealth laws, as well as state laws in South Australia and the Northern Territory.
A lack of consent may be given verbally or physically – for example, resisting attempts to engage in sexual intercourse.
NSW law also lists a range of situations where consent is absent – including where force is used or threatened, where the complainant is under 16, or where they are asleep or unconscious.
The fact that a complainant is ‘substantially affected by alcohol or any other drug’ may also lead to a finding that there was no consent.
As stated, a defendant may be found guilty if they thought that the complainant consented, but were reckless to the possibility that they may not have.
But how is recklessness defined?
Recklessness in the context of sexual assault means that the defendant engaged in the act without regard for whether or not the complainant gave consent.
Where it is alleged that the defendant was reckless, the prosecution must prove that they failed to properly consider whether the complainant was consenting, or they realised that it was possible that the complainant not consenting but went ahead anyway.
Is greater reform needed?
Despite recent attempts to clarify the law – including the substantial broadening of situations where consent is deemed to be absent – some have argued that additional reform is necessary to ensure that ‘honest mistakes’ as to consent do not occur.
Some have advocated for a ‘yes means yes’ approach – which requires persons to ascertain affirmatively that their partners consent to any sexual activity.
Due to the high incidence of on-campus sexual assault within US colleges, California has recently passed a law making it a legal requirement for college students to obtain consent from their partners – either verbally or in the form of a nod – before engaging in sexual intercourse.
Under the law, resistance or silence will not constitute consent.
While the law is intended to guard against possible mistakes as to consent, there are still several problems with it, and some argue that it will do little to curb on-campus sexual assaults.
Firstly, it may be difficult to implement in practice. Sexual intercourse often occurs in the ‘heat of the moment,’ in which parties may be intoxicated and, as a result, unwittingly forget to explicitly ask for consent.
Yet under the new laws, one may be charged with sexual assault in these situations.
Secondly, the law does little to overcome the problem that, ultimately, issues of consent come down to complainant’s word against that of the alleged perpetrator.
There is nothing to prevent a perpetrator from lying and arguing that the complainant consented, or vice versa.
Whether or not the Californian law will be effective in reducing rates of sexual assault on campus remains to be seen, however it will be interesting to see how the law there grapples with the various questions raised.