Amendments to Sexual Assault Laws in NS W

On 8 December 2021, the governor of New South Wales gave royal assent to the Crimes (Sexual Consent Reform) Bill 2021 after it had passed through Parliament two weeks earlier. The bill has brought in sweeping reforms to the law regarding consent in sexual crimes and will likely change the complexion of how these crimes are prosecuted in New South Wales courts. At the moment, the amendments have now come into effect. This article will look at the three key areas in which the law has been changed.

What will judges have to tell juries about consent?

The first major amendment to the law of consent is in the content of what judges will now have to tell juries in trials for sexual offences. The New South Wales government has emphasised that the purpose of the amendments is to recognise that people have a right to participate or not participate in sexual activity and that it is a communicative and ongoing process, and that can clearly be seen in what judges will now have to instruct juries on. The key new directions that judges will usually have to give juries are:

·        Non-consensual activity can occur between people who know each other and are in a relationship.

·        Victims of sexual offences can react in any number of ways to non-consensual sexual activity.

·        A lack of threats or violence doesn’t mean that someone consents to sexual activity.

·        It shouldn’t be presumed that someone consented to sexual activity because they got drunk or because they were wearing certain clothes.

·        Juries should put aside their preconceived notions about sexual consent.

When do people consent?

The second major amendment is the extended list of circumstances in which the law will automatically deem a person to have not consented to sexual activity. Right now, the only such circumstances are those found in section 61HE of the Crimes Act 1900:

·        The person is mentally incapable of consenting.

·        The person is unconscious or asleep.

·        The person “consents” because of threats of force or terror.

·        The person is illegally detained.

In addition to the above, subsection (6) of section 61HE provides that a person automatically doesn’t consent to sexual activity if they “consent” because they have a mistaken belief about who the person is, about whether they are married to the other person, about whether the sexual activity is for health purposes, or any other mistaken belief induced by fraudulent means.

The amending bill adds the following to the list of circumstances will automatically deem there to be no consent:

 ·        The person doesn’t do anything to communicate consent.

·        The person is too intoxicated to be able to consent.

·        The person “consents” because of coercion or blackmail, whether in one instance or as part of a pattern.

·        The person is overcome by an abuse of trust or authority.

In addition to the above, the amendment makes it clear that there still won’t be consent where the person “consents” because of threats of force or terror, but now that threat can be in the form of a single instance or an ongoing pattern.

When does someone know that another person isn’t consenting?

In order to prove that someone is guilty of sexual intercourse, sexual touching, or a sexual act without consent, it is necessary for the prosecution to prove that the person on trial “knows” that the other person doesn’t consent. Section 61HE of the Crimes Act currently lists the circumstances in which someone “knows” that the other person isn’t consenting.

·        The person actually knows that the other person isn’t consenting.

·        The person either:

o  Knows there’s a risk that the other person isn’t consenting.

o  Doesn’t even think about whether the other person is consenting.

·        There aren’t any reasonable grounds upon which the person could believe that the other person isn’t consenting.

The bill amends the last option to where a person doesn’t have a reasonable belief that the other person is consenting. This might seem like a very minor amendment, but the practical effects might be great.

The likely motivation comes from the Lazarus cases between 2015 and 2017. In that series of cases, Luke Lazarus went through two trials and two appeals over allegations that he had sexually assaulted a woman outside a King’s Cross nightclub. He was first convicted before the verdict was set aside by the Court of Criminal Appeal. He was then acquitted at his second trial, but the prosecution appealed that verdict to the Court of Criminal Appeal again. While the prosecution was technically successful on the appeal, the appeal court determined that it would have been unjust for him to stand trial a third time.

The significance of the words “reasonable grounds” was highlighted in the first appeal in 2016. At the first trial, where a jury found him guilty, the judge had told the jury that they should convict Lazarus if they were satisfied beyond reasonable doubt that he didn’t have a reasonable belief that the woman was consenting. However, the appeal court determined that this was an error, as the law didn’t say he needed to have a reasonable belief—he was allowed to have an unreasonable belief so long as there may have been some reasonable grounds upon which he could have formed that opinion. Indeed, at his second trial, the judge sitting alone was satisfied beyond reasonable doubt that the woman had not consented, but acquitted him this time after her Honour found that there were reasonable grounds upon which he could have had a belief as to consent.

The amendment to the law that we see now is most likely a reaction by Parliament to what might have been seen as a “technicality” entitling people to an acquittal on sexual assault charges where the person on trial didn’t have a reasonable belief that the other person was consenting. Furthermore, the law will now deem a belief as to consent to not be reasonable if the person on trial didn’t say or do anything to find out if the other person was consenting. Going forward, it won’t be enough for someone on trial to point to some reasonable grounds upon which they could have formed a belief as to consent—the person’s belief itself will need to have been a reasonable one based upon action they took to find out if the other person was consenting.

The above amendments have generally been met with widespread support from the public and from advocacy groups. Saxon Mullins, the complainant in the Lazarus series of cases, said that she was “really happy” with the bill as passed and that the amendments were “common sense”. However, others, such as prominent Sydney barrister Stephen Odgers SC, have expressed concerns that the amendments might go too far in criminalising behaviour that we might not ordinarily consider to be sexual assault. Ultimately, time will tell if the amendments to consent laws have struck the right balance and promoted a modern understanding of consent.