Social movements against offences of sexual violence have gained global traction after victims have commenced to utilise social media platforms to empower others to share their sexual violence survival stories.
The MeToo movement was such a global movement which exposed widespread sexual abuse and subsequently gained traction in governments locally.
The world could no longer ignore the prominent deficiencies evident in sexual violence legislation and the issue was thus brought to the forefront of discussion.
The legislative provisions relating to sexual violence offences are complex and require more than amendments to the legislation to ensure change.
It is imperative that greater understanding of consent and sexual violence is fostered in the community and more support should ultimately be provided to the parties involved in the sexual violence offence.
The Law in New South Wales
In 2018, sweeping changes were made to division 10 of the Crimes Act 1900 (NSW) to refine/consolidate offences involving sexual violence, provide clearer definitions and include defences which are available to a defendant who is alleged to have engaged in an offence of sexual violence.
One such amendment which was made to Division 10 was the inclusion of s 61KE.
This provision has replaced the prior offence of engaging in an indecent act and in so doing has provided a more succinct guideline relating to sexual acts.
Pursuant to s 61KE Crimes Act any person "who without the consent of another person and knowing that the alleged victim does not consent intentionally -
- Carries out a sexual act with or towards the alleged victim, or
- Incites the alleged victim to carry out a sexual act with or towards the alleged offender, or
- Incites a third person to carry out a sexual act with or towards the alleged victim, or
- Incites the alleged victim to carry out a sexual act with or towards a third person
Is guilty of an offence".
Should the defendant carry out the sexual act in company, or if the victim was under the authority of the defendant or is found to be suffering from a serious physical disability or cognitive impairment, the defendant may be charged with a form of aggravated sexual act under s 61KF.
What is a Sexual Act?
A sexual act is defined as an "act carried out in circumstances where a reasonable person would consider the act to be sexual".
In assessing whether the act in question was in fact one which is sexual in nature, it is imperative to consider:
- Whether the area of the body involved in the alleged act is a person's genital area or anal area or the person's breasts, whether or not the breasts are sexually developed, or
- Whether the person carrying out the act does so for the purpose of obtaining sexual arousal or sexual gratification, or
- Whether any other aspect of the act (including the circumstances in which it is carried out) makes it sexual: Section 61HC(1) Crimes Act.
Section 61HC provides a non-exhaustive list which a judicial officer/trier of fact is permitted to consider when determining whether "a reasonable person would consider the act to be sexual" in nature.
The definition which has been provided under this renewed legislative provision provides an unwarranted definition to the provision which may be broadly construed.
Consent is an indispensable element of all sexual assault law across NSW and therefore it is imperative that it is firstly demonstrated by the prosecution that there was otherwise an absence of consent.
In demonstrating that the complainant has not provided their consent otherwise freely or voluntarily, the prosecution must demonstrate that the defendant held knowledge that the complainant does not consent to the sexual activity (s 61HE(3)) and Bochkov v R  NSWCCA 116 at -.
Knowledge of an absence of consent may be demonstrated if:
- It is apparent that the defendant knows that the complainant did not consent to the sexual activity,
- It is apparent that the defendant was reckless as to whether the complainant consents to the sexual activity, or
- The defendant has no reasonable grounds for believing that the alleged victim consents to the sexual activity.
The determination of whether consent was present at the time of the sexual act requires an examination of any steps which were taken by the defendant to ascertain whether the complainant consents to any impending sexual activity: s 61HE(4).
Further, there are circumstances in which it is notable that the complainant does not consent to a sexual activity. Pursuant to section 61HE(5), (6) and (8), a person does not consent to a sexual act if:
- A person does not have the capacity to consent to the sexual activity, including because of age or cognitive incapacity, or
- A person does not have the opportunity to consent to the sexual activity because the person is unconscious or asleep, or
- A person consents to the sexual activity because of threats of force or terror, or
- A person consents to the sexual activity because the person is unlawfully detained, or
- The person held a mistaken belief as to the identity of the other person,
- The person held a mistaken belief that the other person is married to the person,
- The person held a mistaken belief that the sexual activity is for health or hygienic purposes,
- The person held any other mistaken belief about the nature of the activity induced by fraudulent means,
- The person consents to the sexual activity under circumstances where they were substantially intoxicated by an alcohol or any other drug: Tabbah v R  NSWCCA 55 at ,
- The person consents to the sexual activity because of intimidatory or coercive conduct, or
- The person consents to the sexual activity because of the abuse of a position of authority or trust.
It is apparent that the definition of "consent" provided under s 61HE is riddled with a plethora of ambiguity and is open to interpretation.
To overcome the issues relating to consent and knowledge thereof, the Law Reform Commission has proposed an "affirmative consent" model.
Affirmative consent requires consent to be actively sought and actively communicated, rather than implied by the complainant or provided by the complainant in advanced.
The affirmative consent model focuses on whether the consent was provided at the time of the sexual act.
It acknowledges that consent is an ongoing process throughout the sexual activity which may be revoked at any stage, rather than implied by the behaviour of the complainant before or at the time of the sexual encounter.
The proposal by the Law Reform Commission, in effect, removes the requirement of the defendant to have knowledge that the complainant has not provided consent or was reckless as to the providing of such consent.
Whilst the proposal would eliminate any speculation as to whether or not consent was implied by the complainant, it raises several concerns.
The proposal does not permit the person to provide consent in advance for any sexual activity and requires the consent to be renewed prior to each individual sexual encounter. Failure to renew the consent may lead to the inappropriate criminalisation of behaviour which would otherwise not involve any serious misconduct.
Further, the proposal seeks to introduce a requirement that the complainant verbalises their consent to the other person. The absence of the verbalisation of consent prior to engaging in each sexual encounter will also lead to the criminalisation of the conduct.
In such a case, even if the trier of fact is satisfied that the complainant has provided consent by way of implication, under the present proposal the complainant would be found to have not provided such consent.
It is imperative to note here at consent is not only defined by words uttered by the complainant, it is often implied by the conduct of the complainant.
It remains to be seen whether the Law Reform Commission proposals will continue to be scrutinised or will translate into a large adjustment of the interpretation of consent law in NSW.
The challenge with such proposals is whether the proposals would effectively address the current deficiencies in the definition of consent or whether the proposals would unnecessarily criminalise otherwise consensual sexual encounters.
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