In October 2021, the NSW Attorney General Introduced a bill in the NSW Parliament with the aim of reforming sexual consent laws. This bill The Crimes Legislation Amendment (Sexual Consent Reforms) Bill 202 is aimed at altering the current laws regarding sexual consent and the ways in which sexual consent is both given and obtained by parties engaging in sexual acts.
The impetus for the drafting of this bill was the highly publicised case of R v Lazarus. In this case, upon appeal of the initial conviction the accused, Mr. Lazarus was found not guilty of sexual assault. This case sparked much debate regarding consent laws in NSW. This outrage surrounded the fact that although the judge found that the victim did not consent to sexual intercourse, however, it was simultaneously found that Mr Lazarus had no reasonable basis for believing that she did not consent.
The new Bill is aimed at eradicating such legal dilemmas by legislating that consent must be given freely and willingly to all sexual acts, and additionally that lack of knowledge of the absence of consent is no longer a defence against sexual assault charges.
What Constitutes Consent?
In light of these new amendments, it is essential that consent be given freely and willingly. This means consent cannot simply be presumed. Adjunct to this, a person who consents to one sexual act is not taken to have consented to another sexual activity without verbal or physical communication. To this effect, consent must be given to each individual act. Affirmative consent is achieved when a party does or says something to communicate that they consent to the activity. In the absence of action or words communicating consent; the person is taken not to have consented. These new standards are aimed to remove the ambiguity of consent and ensuring that all parties to sexual activity are comfortable and consenting. It is, necessary however to note that although these new reforms are idealistic in clarifying what does and does not constitute consent, the new bill is relatively quiet on its explanation of what actions will be taken to be actions of consent. This gap may be problematic in the enforcement of affirmative consent laws as interpretation of body language is not always black and white.
When Consent Cannot Be Given
Another relevant area of this reform is the reinforcement of the longstanding notion that coercion is not consent. A person must not be taken to have consented to an act if there has been a use of force, a threat of force or fear of force. In any of these circumstances, the complainant is not taken to have given free and informed consent. Allied to this, the new bill echoes pre-existing legislation which states authoritatively that any person who is heavily affected by drugs or alcohol is unable to consent to sexual intercourse. This also applies to any person who is asleep, unconscious, manipulated or threatened.
As outlined in proposal for the new bill, the Attorney General provided the following statement:
“An accused’s belief of consent existence will not be reasonable in the circumstances unless the accused said or did anything- within a reasonable time before or at the time of the sexual activity- to find out whether the other person consents to the sexual activity.”
This document may be read here for further information regarding the new reforms.