NSW has announced it will introduce changes to sexual consent laws to better protect victim-survivors and address growing community concern about sexual violence.
The reforms are in response to 44 recommendations made by the New South Wales Law Reform Commission (LRC) in a report published in November last year.
The essence of the LRC recommendations is that a person who does not do or say anything to communicate consent, does not consent to sex. In other words, consent must be communicated in some way. The reforms will mean that:
(a) a person does not consent to sexual activity unless they said or did something to communicate consent, and
(b) an accused person’s belief in consent will not be reasonable in the circumstances unless they said or did something to ascertain consent.
“This means we will have an affirmative model of consent, which will address issues that have arisen in sexual offence trials about whether an accused’s belief that consent existed was actually reasonable,” NSW Attorney General Mark Speakman said in a statement.
“No one should assume someone is saying ‘yes’ just because they don’t say ‘no’ or don’t resist physically. Steps should be taken to make sure all parties are consenting.”
The review of NSW’s sexual consent laws was in response to the controversial and high-profile acquittal of Luke Lazarus in 2017. Lazarus was found guilty of raping then 18-year-old Saxon Mullins in a Kings Cross alleyway in 2013 but appealed to the District Court which quashed his conviction.
District Court Judge Robyn Tupman found that although Mullins did not consent, Lazarus was not aware that she was not consenting. “She did not take any physical action to move away from the intercourse or attempted intercourse, either when they were standing up, or when she was down on the ground on all fours,” Judge Tupman said. “I stress that by none of that behaviour, in her own mind, was the complainant consenting to sexual intercourse and I have already found that the Crown has proved lack of consent beyond reasonable doubt, but I accept that this series of circumstances…amounts to reasonable grounds in the circumstances for the accused to have formed the belief, which I accept was a genuine belief, that in fact the complainant was consenting to what was occurring…”
Consent is defined in the NSW Crimes Act as meaning when a person freely and voluntarily agrees to sexual activity. The current law in NSW is that a person knows that a person does not consent if they:
- know the complainant does not consent;
- are reckless as to whether the complainant consents; or
- have no reasonable grounds for believing the complainant consents.
In the Lazarus case, because Mullins “froze” and did not communicate consent, Judge Tupman was of the view that it was reasonable in the circumstances for Lazarus to hold an honest belief that she was consenting.
The DPP appealed the decision to the NSW Court of Criminal Appeal but it refused to order a third trial on the basis that to do so would “give rise to oppression and unfairness” to Lazarus.
Amongst the reforms will be five new jury directions which judges may give at trial. “These directions will support complainants by ensuring their evidence will be assessed fairly and impartially, and that juries will be able to better understand the experiences of sexual assault survivors,” Mr Speakman said.
The reforms are expected to be introduced in the next session of parliament.