Should Sexual Consent Laws be Changed? (NSW)

A debate is currently raging in New South Wales as to whether the state’s sexual consent laws need to be changed. The current definition of consent is contained in Section 61HA of the Crimes Act 1900. Consent is defined there as ‘free and voluntary agreement’.  The provision also specifies situations in which a person cannot be found to have consented to sex, such as where they are asleep, unconscious or lack capacity to consent (for example, because of age or cognitive impairment). This provision was introduced in 2007 and aimed to bring consent laws into line with community standards for sexual behaviour. But under Section 61HA a person can be found guilty of rape only if sexual intercourse has occurred without the complainant’s consent and the accused knew or was reckless as to whether the complainant was consenting. As the law currently stands, an accused can be found not guilty of rape if he held an honest belief that the complainant was consenting, even if this belief was not reasonable.

That was the case in the 2017 acquittal on appeal of Luke Lazarus. Lazarus had been found guilty in 2013 of raping 18-year-old Saxon Mullins in an alleyway behind a King’s Cross nightclub but the conviction was overturned on appeal. The appeal judge found that although Mullins had not consented to sex, Lazarus had not been aware that she was not consenting. On the facts of the case, it is hard to see how the accused could have entertained an honest belief in the woman’s consent. She had been a virgin when he met her half an hour earlier in his father’s nightclub. After leading her to the alleyway outside, he forced her onto all fours and anally penetrated her, ignoring her protests that she wanted to return to her friend inside. His argument at appeal, that her body language made him believe she was consenting, was accepted.

The decision prompted the NSW Law Reform Commission to review the state’s consent laws. Preliminary submissions to the review have been taken and some, such as that made by the NSW Bar Association, have received widespread condemnation. The NSW Bar Association argued in its submission that a person who is reckless or indifferent to the existence or absence of consent, ought not to be held to the same level of liability as a person who positively knew a complainant was not consenting. It maintained that penalties for sexual offences are harsh and that these offences should be defined in such a way that encompasses only behaviour that clearly violates community standards.

Conversely, Community Legal Centres New South Wales (CLC NSW) argued that a requirement should be introduced that consent be positively, actively communicated. This, it argued, would eliminate the possibility for an accused to escape liability for a sexual assault merely because he held an unreasonable belief that a person was consenting to sex. Feminist groups expressed a similar desire for the provision to be strengthened in such a way as to require consent to be positively communicated. Many responses to the review argued that the current consent laws place too much responsibility on women to ensure their actions are not (mis)interpreted as consent and too little responsibility on men to take steps to ensure that a sexual encounter is consensual.

Criminal laws generally aspire to reflect the standards of the community and to deliver condemnation and punishment to those whose actions violate those standards. In jury trials, the values of community members are particularly determinative. Juries arrive at verdicts based on their interpretation of the actions of complainants and defendants and their decisions about where those actions fit in relation to accepted sexual behaviour. Some groups and individuals have argued that changing the consent laws to require positive communication of consent would contribute to educating the community about responsible sexual behaviour and changing harmful attitudes towards women.

The NSW Law Society took the view that the consent laws contained in Section 61HA do not need to be amended. It argued that community attitudes towards consent could be addressed through widespread community education. It also suggested judicial education was needed around the difficulties juries have in understanding complex directions.

The NSW Law Reform Commission will be releasing a consultation paper and seeking further community input later this year.

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