The NSW state government commissioned a review of the laws relating to consent in sexual assault cases in May 2018, following the acquittal of a man accused of sexually assaulting an 18-year old woman in an alleyway behind his father’s Kings Cross nightclub in 2013.
The proposal has been met with opposition by the President of the NSW Law Society, Doug Humphreys OAM, who believes the existing definition of consent is appropriate.
Current definition of consent in NSW
Under section 61HA (now superseded by section 61HE) of the Crimes Act, consent is considered to have been given in the context of sexual assault cases where a person “freely and voluntarily agrees to the sexual intercourse.”
The first requirement to establish a lack of consent is that the complainant did not consent.
The second is that the defendant knew the complainant did not consent.
This second requirement is established where the prosecution proves that the defendant:
- knew the complainant was not consenting, or
- was reckless as to whether the complainant was consenting, or
- had no reasonable grounds to believe the complainant was consenting.
In making such a finding, the court must have regard to all of the circumstances of the case including any steps taken by the defendant to ascertain whether the complainant was consenting, but it must not consider any self-induced intoxication by the defendant.
In addition to this, the current law provides that a person cannot consent to sexual intercourse where he or she:
- does not have the capacity to consent due to their age or cognitive incapacity, or
- does not have the opportunity to consent as they are unconscious or asleep, or
- consents because of threats of force or terror, or
- is unlawfully detained.
Furthermore, the current law provides that a person does not consent if under a mistaken belief that:
- he or she is married to the defendant, or
- that the sexual intercourse is for health or hygienic purposes.
The law also presently provides that the grounds on which it may be established that a complainant does not consent to sexual intercourse include where he or she:
- was substantially affected by drugs or alcohol,
- was subjected to intimidatory or coercive conduct, or another threat, that did not involve force,
- was taken advantage of through an abuse of authority or trust.
The law also makes it explicitly clear that a complainant who does not offer physical resistance is not necessarily consenting.
These laws were introduced in 2007 in response to a sustained campaign by mainstream media outlets including radio broadcaster 2GB and the Daily Telegraph newspaper to get tough on alleged sexual offenders.
An explicit ‘yes’ means yes, or else it’s a no
The government wants the law to be changed once again to make it easier to convict those who are accused of sexual assault.
NSW Minister for the Prevention of Domestic Violence and Sexual Assault, Pru Goward, wants the change to reflect that, “You must explicitly ask for permission to have sex and if it’s not an enthusiastic ‘yes’ then it’s a ‘no’,”.
Response by the NSW Law Society
However, NSW Law Society President Doug Humphreys OAM has written to the NSW Law Reform Commission regarding “this very important area of potential reform”.
Mr Humphreys outlines that “from a criminal justice perspective”, the Law Society “consider[s] that section 61 HA strikes the right balance between the complainant, who states she/he did not consent (to a sexual act) and the accused, who states he did not know that the complainant was not consenting.”
He adds that, “The Law Society strongly supports standards which reflect the reasonable views of contemporary society and which promote respect and communication in relation to the issue of consent.”
“In our view, section 61 HA effectively provides the capacity for the trier of fact to apply such standards, in particular through the inclusion of the ‘reasonable grounds’ aspect of the test and the requirement for the trier of fact to take into account ‘any steps taken by the person to ascertain whether the other person consents’.”
The Law Society President goes on to acknowledge “concerns about community attitudes towards violence against women and the issue of consent”, calling for “meaningful and wide reaching community education which promotes communication in relation to consent and respectful and responsible behaviour in sexual relationships is the most effective way to achieve long term change.”
But many victims groups disagree, calling for the implementation of an ‘explicit consent’ style definition which would increase the likelihood that those accused of sexual assault are convicted.