Defendants could face conviction unless they can show they have taken active steps to obtain consent for sex under a number of reforms announced by the Attorney-General and welcomed by the woman whose case was the catalyst for change.
An affirmative consent model is among the sweeping changes that will be made to sexual assault laws in NSW.
- Judges will be able to give directions to juries to dispel myths about rape
- It’s estimated only 3 per cent of sexual assault complaints end in conviction
- The reforms are expected to be introduced in the next session of parliament
It comes in response to the NSW Law Reform Commission’s review of consent in relation to sexual offences, tabled in parliament in November last year.
The new model could see defendants convicted unless they have taken active steps to obtain consent for sex.
Attorney-General Mark Speakman said the government was adopting or adopting in principle all 44 recommendations but had taken extra steps in introducing two key reforms.
He said that with respect to sexual assault, consent was only given if the other party had said or done something to communicate consent.
“You just can’t assume through lack of resistance or lack of protest that consent has been given,” Mr Speakman said.
“It’s very simple, consent has to be communicated by the other party saying or doing something.”
It will also change the mental, ‘reasonable grounds’ test.
“To have a reasonable belief, an accused will have to have taken steps,” he said.
“The accused will have to have done something or said something, reasonable in the circumstances, to ascertain consent.
“A thought process is not such a step, a reasonable step has to be an act or something said to ascertain the complainant’s consent.”
It’s estimated only 3 per cent of the sexual assault complaints made to NSW Police end in a conviction.
Mr Speakman said the definition of consent would also be reformed.
“We’ll be making it clear, reaffirming that consent is something that’s given voluntarily and freely by agreement,” he said.
“That it can be withdrawn at any time, that consent to one sexual activity is not consent to any other sexual activity and that self-intoxication of the accused is not an excuse for failing to form a reasonable belief.”
Judges will be given the ability to give a number of new directions to juries in a bid to dispel myths about rape.
“I’m not going to pretend that the reforms we announce today are somehow going to magically solve the problem of sexual violence in Australia,” he said.
“We will continue to have that problem, we will continue to have victim survivors who will be disappointed by the criminal justice process.
“But I am confident this is an important step in the way to making sure that we can, more than we are at the moment, hold perpetrators to account.”
Saxon Mullins reacts to new sexual assault laws in NSW.
Saxon Mullins, from Rape & Sexual Assault Research & Advocacy, said today was a “really amazing day, that we’ve all waited a really long time for”.
“We are now leading the way in this space and hopefully other states can look to NSW and enact their own reforms,” Ms Mullins said.
“I’m grateful that my case was the catalyst for this reform, but I also recognise that there are many survivors that are not afforded the same opportunity that I was.
“Not only is law reform a significant step, we also must take the steps to ensure all survivors’ voices are heard and their justice is sought, whatever way that is for them.”
The reforms are expected to be introduced in the next session of parliament.