Affirmative consent will be introduced in NSW after a review by the Law Reform Commission (NSWLRC) into sexual assault legislation.
New South Wales Attorney-General Mark Speakman announced a raft of reforms to sexual assault consent laws which go even further than what was proposed by the NSWLRC.
The review of consent laws was prompted by Saxon Mullins, who endured was a complainant in the sexual assault trials of Luke Lazarus.
What is Affirmative Consent?
Affirmative consent means that an accused must actively seek consent and that consent must be actively communicated.
It has been described as shifting from a "no means no" standard to "yes means yes". An accused must obtain clear, expressed consent or they can be found guilty of offences such as sexual intercourse without consent or sexual touching.
Consent must be obtained at every step of the interaction. Previously, having an honest and reasonable belief that consent was present was a sufficient defence to a sexual assault charge. A person raising the defence of "honest and reasonable belief" must demonstrate what positive steps they took to ensure they had consent. A complainant's failure to resist also does not necessarily mean that an accused held an "honest and reasonable belief".
However, affirmative consent requires an accused to prove that the other participant verbalised their consent.
Support for Affirmative Consent
The NSW model for affirmative consent is based on the sexual assault laws in Tasmania. Advocates for the reform pointed to its operation for nearly two decades there.
They have also suggested that the reform shifts the emphasis from the actions of the complainant to the actions of an accused. Supporters of affirmative consent suggest that rape myths and gendered stereotypes that permeate society can be brought sharply to bear in sexual assault trials.
One of the key advocates behind these reforms is Saxon Mullins, who was the complainant in the case of R v Lazarus [2017] NSWCCA 279.
Her case was the catalyst for the NSW Law Reform Commission's inquiry into consent laws. She has also campaigned for affirmative consent through her organisation, Rape and Sexual Assault Research and Advocacy (RASARA).
She told media outlets that, "Affirmative consent is just an ongoing conversation between yourself and whoever you're engaging in sexual activity with, and making sure that the other person wants to continue on wants to keep going with what's happening."
Criticisms of Affirmative Consent
There has also been criticism of affirmative consent. Notably, the NSWLRC did not suggest the change. Earlier this year, the Queensland Law Reform Commission also did not recommend affirmative consent, and in fact suggested there be no substantive change to sexual assault consent laws.
One of the criticisms of affirmative consent is that it effectively reverses the onus of proof. Sexual assault lawyers in Sydney point out that it has been long established that an accused should enjoy the presumption of innocence. As such, they are not required to prove anything. The proposed changes shift the onus onto the accused the prove that consent was present.
It has also been criticised for being an attempt to obtain more convictions in sexual assault trials, rather than actually determining who is guilty and who is not guilty.
Current Sexual Assault Consent Laws in NSW
Section 61HE of the Crimes Act 1900 sets out that a person consents to sexual activity if they freely and voluntarily agree to the sexual activity.
Other than proving simply that a person did not agree, some other grounds on which it can be established that a person does not consent to sexual contact include:
- The alleged victim was substantially intoxicated by drugs or alcohol; or,
- The consent was elicited through intimidation, coercion, or threats of force; or,
- The consent was elicited through abuse of a position of authority or trust.
A person cannot consent to sexual contact if:
- They do not have capacity to consent because of their age (ie. Under 16 years of age or under 18 years of age if a 'special care relationship') or cognitive incapacity;
- They are asleep or unconscious;
- They have consented because of threats or they are unlawfully detained.
A person charged with sexual assault has "knowledge" about lack of consent to the sexual contact if:
- The person knows the alleged victim does not consent; or,
- The person is reckless as to whether the alleged victim consents; or,
- the person has no reasonable grounds for believing the alleged victim consents.
Importantly, a court will take into account all of the circumstances, including any steps an accused took to determine whether the alleged victim consented.
Consent is a very complex area of law. The stakes for sexual offences are extremely high - if a person is found guilty there is a strong chance they will receive a jail sentence.
That is why it is important that you have Australia's best criminal lawyers by your side. We understand the stigma that comes with such allegations and the impact it can have on your employment and family life. It is crucial to speak to an accredited specialist in criminal law early so that we can begin working on your case. We are regularly able to negotiate with Police and the DPP to have sexual assault charges withdrawn. Contact Astor Legal on (02) 7804 2823 or email us at info@astorlegal.com.au
Affirmative Consent in Australia
The NSW reforms have been hailed as a win for supporters of affirmative consent throughout Australia.
Ms Mullins said, "I think we have seen such an ongoing support for this movement, with all the marches we've seen recently, all the stories that are coming forward. I hope this support continues and this momentum continues. And I do have hope that we will see some further change."
Mr Speakman estimated it would take approximately six months for the legislation to come into force. He also said he would introduce it in the next session of parliament.
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