- The law in NSW will soon include affirmative consent.
- The new regulations will more effectively identify sexual violence in the context of family and domestic abuse.
- It will be necessary to implement a thorough evidence-based community education campaign in conjunction with focused expert-developed and delivered training for judges, attorneys, and police.
The NSW Parliament has approved the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021. It will become operative upon declaration, anticipated to occur in May 2022.
Context
The strong advocacy of Saxon Mullins, who courageously exposed her personal experience in a Four Corners episode titled “I am that girl,” has been the driving reason behind these revisions. As a result, in May 2018, the Hon. Mark Speakman SC MP, the NSW Attorney General, requested that the NSW Law Reform Commission (NSWLRC) undertake a review of consent with regard to sexual offenses.
The NSWLRC Report, which contained 44 recommendations, was presented to Parliament in November 2020. In response, the NSW Government stated in May 2021 that it either supported all of the recommendations in full or in principle. In addition, the Government introduced affirmative consent, going one step further than the NSWLRC’s recommendations. The Crimes Act 1900, s. 61HK(2), states that an accused person’s belief in consent “is not reasonable if the accused person did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person consents to the sexual activity.” This will become evident once the legislation takes effect.
We are delighted that this legislation has been passed and that important discussions regarding consent have been having place.
Consent that is Affirmative
The adoption of affirmative consent is a key component of this new regulation.
Consent entails “ongoing and mutual communication,” “free and voluntary agreement,” and “is not to be presumed,” as the Act would make explicit in Subdivision 1A’s goal (Crimes Act, s. 61HF).
In addition to stating that “consent to a particular sexual activity, is not, by reason only of that fact, to be taken as consent to any other sexual activity,” the definition of consent will continue to require free and voluntary agreement (Crimes Act, s. 61HI(1)). (Crimes Act, s. 61HI(5)). Additionally, that:
“One time consent to engage in sexual activity with an individual does not imply subsequent consent to engage in sexual activity with-
- that person on another occasion[Crimes Act, s. 61HI(6)]
- or another person on that or another occasion.
According to Crimes Act, s. 61HJ(1)(a), “the person does not say or do anything to communicate consent” is one of the situations in which there won’t be consent. The goal of this is to identify the “freeze” reaction, which is a typical reaction to shock. “Silence does not mean consent, nor should consent be inferred when a person remains unresponsive,” the Attorney General states in his Second Reading Speech (Second Reading Speech, Legislative Assembly Hansard, October 20, 2021).
The knowledge element has undergone another notable modification. The reasonable belief test, which considers all pertinent factors, will take the place of the reasonable grounds test, with the requirements pertaining to actual knowledge and recklessness to consent essentially remaining unchanged. As previously said, in order to establish a reasonable suspicion that the other person consented, the accused must say or do anything to guarantee consent. There will be an exception to this if the accused can demonstrate that they were suffering from a mental or cognitive impairment at the time of the sexual activity, as long as “the impairment was a substantial cause of the accused person not saying or doing anything” (Crimes Act, s. 61HK(3)).
Single list of circumstances in which no consent
The Crimes Act, section 61HJ, will create a single, non-exhaustive list of situations in which permission is not required. This is significant because it will make the legislation simpler. There is now a list of things that could make consent invalid as well as others that don’t.
Certain situations where consent is not obtained will be defined more precisely. For instance, although being “substantially intoxicated” is currently one of the conditions under which consent may be revoked, the emphasis will soon move to the complainant’s capacity to consent; that is, consent will not be granted if “the person is so affected by alcohol or another drug as to be incapable of consenting to the sexual activity” (Crimes Act, s. 61HJ(1)(c)).
Increased awareness of sexual assault in the context of abuse and violence against families and domestic partners
The new law would more clearly identify sexual assault in relation to abuse and violence against families and domestic members. This will be achieved by making the list of situations in which consent is not required clearer and longer. There will also be new jury instructions introduced.
Circumstances of no consent
There will be a greater understanding of the various ways that individuals can be forced to engage in sexual activity, such as by “force, fear of force, or fear of serious harm of any kind” (Crimes Act, s. 61HJ(1)(e)), which goes beyond just involving people to include harm or fear of harm to animals or property. To underscore that injury need not be inflicted physically, the phrase “serious harm of any kind” is used. Furthermore, according to Crimes Act, s. 61HJ(1)(e)(i) and Crimes Act, s. 61HJ(1)(e)(ii): “Whether it occurs as a single instance or as part of an ongoing pattern”—that is, “when the force or the conduct giving rise to the fear occurs”—this provision will apply.
We are glad that it is now clear that there need not be any fear of injury before to or during sexual assault. When there are persistent patterns of abuse, this is especially crucial for survivors of domestic violence and abuse.
The definition of “coercion, blackmail, or intimidation” (Crimes Act, s. 61HJ(1)(f)) will be made more evident.
As stated in the Crimes Act, s. 61HJ(1)(h): “overborne by the abuse of a relationship of authority, trust, or dependence,” we also applaud the inclusion of such circumstances. The term “dependence” has been added to better describe non-consensual sexual activity when an elderly person or person with a disability who depends on a formal or informal caregiver for daily needs engages in non-consensual sexual activity with the caregiver out of fear that their support will be withheld.
Jury Directions
Rape myths persist, according to the 2017 National Community Attitudes Survey on violence against women. As an illustration:
- The following statistics are taken from Webster et al.’s Australians’ attitudes to violence against women and gender equality:
- “Nearly one in five are not clear that coerced sex in marriage is against the law”;
- “One in ten either agree that it is only rape if a woman physically resists”; and “More than one in three believe a woman is more likely to be sexually assaulted by a stranger than someone she knows” (ANROWS, 2018).
A jury directive has been proposed that acknowledges the “many different circumstances” in which non-consensual sexual activity occurs, as well as the fact that it happens between “different kinds of people.” This includes, but is not limited to, individuals who are acquainted, married, or in a romantic relationship (Criminal Procedure Act 1986, s 292A).
Further jury instructions will address various fallacies surrounding rape. Jury instructions, for instance, clarify that an individual may be sexually assaulted without suffering any bodily harm or being threatened with harm or violence (Criminal Procedure Act 1986, s. 292C). Juror instructions will also emphasize that there is “no typical or normal response to non-consensual sexual activity,” that some people may react by freezing, and that it is not advisable to depend solely on “preconceived ideas” (s. 292B). According to s. 292D, an additional jury instruction will recognize that trauma impacts individuals differently and that some may exhibit “obvious signs of emotion or distress” while others may not.
