- What are the major changes to sexual consent laws in NSW?
- Why did sexual consent laws need to be strengthened in NSW?
- What is the situation in other states?
- What more could be done to improve the experience of sexual assault survivors in justice system?
- What’s being done to educate young people’s understanding of consent?
On June 1, 2022, the NSW consent laws were changed. The Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 enacted consent reforms with the following goals:
- Clarify consent provisions in the Crimes Act of 1900, such as that consent is a free and voluntary agreement that should not be assumed.
- Emphasize that consent entails ongoing and mutual interaction.
- Strengthen laws to ensure that consent can be revoked and that consent to one sexual act does not imply consent to other sexual acts.
- Ensure more equitable and productive prosecutions of sexual offenses.
What are the major changes to sexual consent laws in NSW?:
The inclusion of communicative and affirmative consent language in the Crimes Act 1900 is a significant change (NSW). The reforms specifically state that consent to sexual contact must be conveyed through words or actions and that there is a duty to undertake steps to determine whether the other person is consenting. This has been accomplished through significant changes to the rules guiding proof of non-consent and proof of knowledge of non-consent, both of which are necessary aspects of the criminal offense of sexual assault and other sexual offenses.
First, in sexual assault trials, the defense frequently challenges the Crown’s capability to demonstrate non-consent by offering proof that the complainant did nothing to indicate non-consent, such as silence or a lack of reluctance. An indication that a person did not say or do anything to convey consent is now evidence of non-consent under NSW law, which is a prosecutorial power, not a weakness.
Second, an accused person can no longer claim that their belief that the other person was consenting was sensible unless there is proof that they took steps to find out – through words and/or actions.
Other modifications include a better and clear acknowledgment that sexual consent requires ongoing and mutual communication, that a person has the right to withdraw consent at any time, and that consenting to one sexual act does not imply consent to others.
The reforms also broaden the list of situations in which ‘apparent’ consent will be considered non-consent. Fear of serious damage to a person, assets, or animal; coercion, blackmail, or intimidation; and bogus inducement such as trickery are now on the list.
Why did sexual consent laws need to be strengthened in NSW?
The laws were altered to better serve victims of sexual assault. According to estimates, up to 87% of women who have experienced sexual abuse do not reveal their experiences to the police, and even fewer go to court. Those who do are largely let down by the system.
Solitude or absence of resistance cannot be interpreted as consent under an affirmative consent standard. This is intended to recognize how, as a result of fear or trauma, some individuals may react to non-consensual sexual activity by freezing and not being able to say or do anything to convey non-consent. The reforms now allow judges to instruct juries on this and other ‘rape myth’ or stigmatising topics.
The reforms aim to ensure fairer and more effective prosecutions of sexual offences, address misconceptions about consent in trial proceedings, improve survivor experience of the justice system, and enhance juror understanding of the complexities of sexual offending and the importance of not relying on rape myths and stereotypes in making their decisions.
What is the situation in other states?
Following the lead of Victoria and Tasmania, which took early steps toward a conversational consent model, several Australian states have addressed the necessity to modernize sexual consent laws and the rules governing rape/sexual assault trials in recent years. The Queensland government was chastised in 2020 for enacting only minor legal changes and failing to include a verbal consent standard in the Criminal Code. Victoria, once a leader in sexual offense reform, has fallen behind, but if the government implements the suggestions of the Victorian Law Reform Commission’s (VLRC) 2021 report on Improving the Response of the Justice System to Sexual Offences, it will gain back its stance as an Australian jurisdiction leader.
What more could be done to improve the experience of sexual assault survivors in justice system?
While these reforms are a significant step forward, they must be accompanied by a survivor-centered response in the education, healthcare, and justice areas, including coaching for police, legal professionals, and the judiciary. In Victoria, the VLRC has recommended that the government test a variety of measures, including the development of a rehabilitative scheme that is appropriate for sexual violence and would supplement criminal justice system responses.
What’s being done to educate young people’s understanding of consent?
The NSW reforms are accompanied by a youth-targeted social media campaign to help improve social behaviors. The videos, dubbed the ‘Make No Doubt’ campaign, aims to empower young individuals to verify consent before having sexual contact, as well as to promote communicative consent as a favorable ethical stance to sexual relationships.
The Australian Curriculum has also been improved in terms of relationship building and consent, including direct teaching of the skills and understandings needed for respectfully offering and obtaining consent in age-appropriate ways throughout the school years.
There are also a number of community-led projects, such as ACON’s Say it Out Loud, which takes a capacity-building approach while also modeling healthy relationships and consent.
NSW consent laws were modified in order to protect the citizens from any form of sexual abuse. These amendments were to ensure respect and trust among individuals. The state is making sure that children in schools are also being taught about respect as this will be beneficial for the society.
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