Affirmative Sexual Consent Laws Passed in New South Wales

The New South Wales parliament passed laws this week, which mean that those who plan to have sexual relations are required to take active steps to ensure the other person is a willing participant.

Welcomed by victims’ groups

The laws have been welcomed by victims’ groups and long-time advocates for law reform such as Saxon Mullins, who was the complainant in a sexual assault  case which spanned two trials and two appeals over several years.

The man Saxon Mullins accused of sexual assaulting her, Luke Lazarus, was acquitted of all charges because it was found he had an honest and reasonable belief Ms Mullins consented to the act.

Current sexual consent laws

Currently, section 61HE of the Crimes Act 1900 (NSW) provides that a person consents to sexual activity if he or she freely and voluntarily agrees to it.

If it is proved beyond reasonable doubt that this did not occur, the defendant may be found guilty of the crime of sexual assault.

Section 61HE proceeds to state that an alleged offender knows there is no consent if he or she engages in sexual activity, or incites anyone to do so, in circumstances where he or she:

• knows the alleged victim does not consent, or
• is reckless as to whether the alleged victim consents, or
• has no reasonable grounds to believe the alleged victim consents.

In deciding whether there is consent, the court must consider any steps taken by the alleged offender to ascertain whether there is consent.

The court cannot take into account any self-induced intoxication by the alleged offender.

The section makes clear there is no consent where the alleged victim:

• does not have the capacity to consent due to their age; the age of consent in NSW is generally 16 years, or 18 years where the complainant is under the defendant’s ‘special care’, or
• does not have the capacity to consent due to a lack of cognitive ability, or
• does not have the opportunity to consent because they are unconscious or asleep, or
• consents because of threats of force or terror, or
• consents due to being unlawfully detained, or
• consents because of a mistaken belief:

(a) as to the identity of the alleged offender,

(b) that the two are married,

(c) that the activity is for health or hygienic purposes, or

(d) that arises through any fraud.

The grounds upon which it may be established that the alleged victim did not consent include that he or she:

• was substantially intoxicated,
• was intimidated, coerced or threatened in any way, or
• was under the authority or trust of the alleged offender.

The section further makes clear that a failure to resist the activity not in itself to be regarded as establishing consent.

Push for narrower definition of sexual consent

Despite the breadth of the circumstances which negative consent, victims’ groups have been pushing for even greater safeguards against the situation where a person may be led into sexual relations against their will – such as where a person ‘freezes’ or does not otherwise act or say anything to communicate the lack of consent.

In that regard, they have campaigned for a requirement that a person must establish that they had “reasonable grounds” for believing the complainant had consented.

The stated objectives of the new law

The stated objectives of the new requirements is to recognise that:

• every person has a right to choose whether to participate in a sexual activity,
• consent to a sexual activity must not be presumed,
• consensual sexual activity involves ongoing and mutual communication, and

decision-making and free and voluntary agreement between the persons participating in the sexual activity.

The definition of sexual consent contained in the Crimes Act 1900 will be amended to facilitate these objectives and judges will be required to update their directions to juries accordingly.

The new law

The new definition will make clear that:

• a person does not consent to sexual activity unless they said or did something to communicate consent; and
• an accused person’s belief in consent will not be reasonable in the circumstances unless they said or did something to ascertain consent.

The definition will confirm that a person has the right to withdraw consent at any time.

It may also require participants to obtain consent at various stages of sexual relations; for example, if consent is given to acts that amount to ‘sexual touching’, further affirmative consent may be required to progress to ‘sexual intercourse’.

Attorney-General calls it ‘common sense’

NSW Attorney-General Mark Speakman has described the reforms as “common sense”, saying the new definition:

“reinforces the basic principle of common decency that consent is a free choice involving mutual and ongoing communication and reinforces that consent should not presumed”.

The state’s chief law officer would not clarify the acts required to ensure legal compliance by sexual participants, but did suggest that “saying something” or giving a “facial expression or physical gesture” could fulfil the legal threshold.

According to him, it’s all ‘common sense’.

Concerns

However, multiple concerns about the new laws have been raised by various groups, including the Law Society of NSW and NSW Bar Association who have campaigned against them since draft laws were made available in 2018.

Then Law Society President Doug Humphreys OAM submitted that the new rules effectively reverse the presumption of innocence – requiring a person to establish that they obtained affirmative consent before sexual acts and potentially during them.

This could be difficult to prove, and could result in innocents persons being convicted of sexual offences despite having done what they thought was necessary to obtain consent, or even where a complainant may be untruthful about having provided consent.

In practical terms, it may be difficult or near impossible to positively establish affirmative consent; after all, it is a serious crime to record an intimate encounter without the consent of the other person.

Is a person to have the other sign a document? If so, should that document be updated through the process? Even if such a document is signed, what is to prevent a vindictive or untruthful complainant asserting the signature was forced, or that despite the document, consent had been withdrawn during the process?

To many, the new definition is a step too far and places an impractical burden on participants – the failure to discharge of which could potentially lead to unjust convictions for sexual offences and years behind bars for innocent persons.

Far from being ‘common sense’, many are of the view the new definition is better described as vague, dangerous and even absurd – potentially increasing unfair prosecutions and wrongful convictions, ruining innocent lives and making a mockery of the criminal justice system.

As Mr Humphreys made clear in his submission to the Law Reform Commission, the existing definition;

“strikes the right balance between the complainant, who states she/he did not consent (to a sexual act) and the accused, who states he did not know that the complainant was not consenting.”

It “effectively provides the capacity for the trier of fact to apply such standards, in particular through the inclusion of the ‘reasonable grounds’ aspect of the test and the requirement for the trier of fact to take into account ‘any steps taken by the person to ascertain whether the other person consents’.”

The new definition, on the other hand, swings the pendulum way too far in favour of the prosecution and has the potential to turn those who have done nothing morally wrong into sexual offenders.