The high profile acquittal of Luke Lazarus in May 2018 has prompted the New South Wales Law Reform Commission to propose new laws that would affect how consent is determined in relation to sexual offences.
The law concerning sexual offences is set out in Part 3, Division 10 of the Crimes Act 1900 (NSW). For a sexual offence to be proven, the prosecution must show that the complainant did not consent to the sexual act.
The law defines consent as a person’s free and voluntary agreement to the sexual activity. A person cannot consent to sexual activity if they are substantially intoxicated (by alcohol or drugs), if they are intimidated, coerced, or threatened into engaging in sexual activity, or if the alleged offender is in a position of authority or trust and abuses this position.
A person does not consent to sexual activity just because they do not physically resist.
The prosecution must also prove, beyond a reasonable doubt, that the accused person knew that the complainant did not consent to the sexual activity, was reckless to whether the complainant was consenting or had no reasonable grounds to believe the complainant was consenting.
What are the proposed changes?
The Commission recommended that the meaning of ‘consent’ be more clearly set out in the legislation, and that the laws should provide:
- Consent must be at the time of the sexual activity,
- A lack of verbal resistance alone does not indicate consent,
- Consent to sexual activity with a person one time does not mean that there is automatically consent at another time,
- A person may withdraw consent at any time before or during the sexual activity, and
- A person can withdraw their consent by either words or conduct.
The Commission also recommended that the law be changed to specify that a person does not consent to sexual activity if the person:
- Does not have capacity to consent,
- Does not say or do anything to communicate consent,
- Is asleep or unconscious,
- Participates because the person is mistaken about the identity of the other person or the nature or purpose of the sexual activity.
Ultimately, the recommended changes reflect the principle that ‘every person has a fundamental right to choose whether or not to participate in a sexual activity’ and the community expectation that sexual activity should involve ‘ongoing and mutual communication, decision making and free and voluntary agreement.’
What do the proposed changes mean?
Including a provision that a person does not consent simply because they do not ‘verbally resist’ recognises that a person will not have consented where they ‘freeze’ out of fear and can’t say ‘no’. This may mean that clear, affirmative consent will be required if the recommendations are adopted.
A change allowing a person to withdraw consent by conduct will mean that indicators such as the body language of a person will need to be considered when determining if that person was consenting to the sexual activity.
The proposed reforms address the community concern that the current laws allow an accused to argue that they assumed the complainant was consenting. However, the NSW Law Society has opposed significant changes to consent laws, asserting that the current definition of consent is adequate, and that these reforms may unduly broaden the law. They also argue that such changes may lead to confusion, because people do not always communicate consent in one standard way.
Where to from here?
Whether the Government will implement any of the NSW Law Reform Commission’s recommendations is yet to be seen.