Sexual Consent Reform Bill Introduced in NSW

Monday 1 November 2021 @ 1.48 p.m. | Crime | Legal Research

On 20 October 2021, the Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021 (NSW) (‘the Bill’) was introduced in the NSW Legislative Assembly. The Bill – introduced by Minister for Prevention of Domestic and Sexual Violence Mark Speakman (‘the Minister’) – seeks to strengthen laws around sexual consent by requiring affirmative and continuous consent.

The Bill has yet to pass the lower house.

In his second reading speech of the Bill, the Minister outlined NSW’s current position on consent, which is the starting point for these proposed reforms:

“Currently in NSW it is a crime for a person to have sexual intercourse with another person, to sexually touch another person or to engage in a sexual act towards another person if any of those is, first, without the other person’s consent and, second, the person knows that the other person does not consent, and an accused knows the other person does not consent if the accused has actual knowledge, is reckless or has 'no reasonable grounds for believing' the other person consents”.

Background: The Law Reform Commission

In May 2018, the NSW Law Reform Commission (NSWLRC) conducted a comprehensive review of consent laws, and it reviewed several issues, including that of an accused’s belief about whether the victim was consenting in trials for sexual offences.

A major catalyst for the review was the case R v Lazarus [2017] NSWCCA 279 ('the Lazarus case') and the subsequent statement the victim shared publicly following the defendant's appeal. The Minister specifically acknowledged her contribution and her “extraordinary bravery in sharing her lived experience and for her advocacy for victim-survivors”.

The NSWLRC's final report, Report 148: Consent in relation to sexual offences, was tabled on 18 November 2020 and contained 44 recommendations for changes.

The Bill: Defining consent generally 

The Bill proposes to insert new sections into the Crimes Act 1900I (NSW), including sections 61HI and 61HJ. Section 61HI which would  describe consent in a general way. Section 61HJ describes specific circumstances in which there is no consent.

Generally, the proposed section 61HI describes consent as the situation where a person agrees to the sexual activity freely and voluntarily. This section would also provide that consent may be withdrawn at any time. Thus, the Bill is proposing that the legislation acknowledge consent as something which must be continuous and communicated through words or conduct.

The proposed section 61HI seeks to address the issue of stealthing. The Minister in his second reading speech clarifies that through this section, the Bill seeks to provide that:

“a person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity. For example, a person who consents to a sexual activity using a condom is not, by reason only of that fact, to be taken to consent to a sexual activity without using a condom.”

The Bill: Circumstances where there is no consent 

In the proposed section 61HJ, a non-exhaustive list of circumstances in which consent is not present is provided. This list includes the following situations (although there are many more contained in the Bill):

  • “The person does not say or do anything to communicate consent”;
  • “The person does not have the capacity to consent”;
  • “The person is unconscious or asleep”;
  • “The person participates in the sexual activity because of force, fear of force or fear of serious harm of any kind to the person, another person, an animal or property”; and
  • “The person participates in the sexual activity because of a fraudulent inducement”.

In terms of the situation listed concerning communication of consent, the Minister said in his second reading speech that:

“[t]his addresses the issue of the ‘freeze’ response, where a person may not physically or verbally resist an assault. Silence does not mean consent, nor should consent be inferred when a person remains unresponsive”.

The Bill also deals with the issue of the offender’s reasonable belief of consent - discussed at length in the Lazarus case - by inserting a new section 61HK, which includes subsection (2) which states:

“(2) A belief that the other person consents to sexual activity is not reasonable if the accused person did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the person consents”.

The Minister added that in relation to the offender’s belief that there was consent, the Bill seeks to retain a hybrid subjective/objective test. This would mean that the focus would be on the reasonableness of this belief in consideration of all other circumstances, rather than simply whether there was a single ground for that belief.

Furthermore, the Bill specifically seeks to provide that there is no consent where a person agrees to have sex with another because of a fraudulent inducement. An example that the Minister gave in his second reading speech, was a scenario in the case of the fraudulent deception of sex workers, where:

“a sex worker may engage in sexual intercourse on the basis of a dishonest representation that they will be paid”.

This would be considered non-consensual sex under the proposed legislation.

How can consent be communicated?   

In his second reading speech, the Minister suggested several ways in which consent can be appropriately communicated under these proposed laws, including:

“by words or actions … for example, reciprocating body language or affirming remarks throughout a sexual encounter”.

He continued to explain that consent:

"may be regarded as a ‘continuum’ in the sense that a person can consent to and maintain consent to a range of sexual activity”.

The Minister emphasised that one of the important aspects of the proposed legislation is that there is no one prescribed way to communicate consent.

Further Amendments 

The Minister, in his second reading speech, also highlighted that the Bill seeks to be inclusive in its operation by providing that:

“it is not relevant whether a body part is surgically constructed for the purposes of a sexual offence”.

The Bill also proposes to amend the Criminal Procedure Act 1986 (NSW) so as to introduce five new directions which would give guidance to juries on the matter of consent, one of which would acknowledge that victims of sexual assault and non-consensual sexual activity can respond to such activity in various ways, including by freezing.

The Minister noted that should the Bill be assented, these reforms would be accompanied by:

“extensive community education ... [given] how important it is that all members of our society understand, and have access to appropriate education about consent and respectful relationships”.

He concluded his second reading speech by stating:

“People are entitled to expect that if someone wants to have sex with them, then that other person will ask … This is just a basic matter of respect. It is time for the law to catch up with common human decency and common sense”.  

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Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021 (NSW) and additional explanatory materials available from TimeBase's LawOne service

R v Lazarus [2017] NSWCCA 279

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