ABC Australia reports that an affirmative consent model is among the extensive reforms that will be made to sexual assault laws in NSW.
These changes come in response to the NSW Law Reform Commission’s review of consent in relation to sexual offences. This review was put forward to parliament in November 2020.
The new model could see defendants being convicted unless they have actively taken steps to obtain consent for sex.
Government introduces two key reforms
The government will also adopt or adopt in principle all 44 recommendations from the Commission. Attorney-General Mark Speakman said the government has taken extra steps to introduce two key reforms.
The first reform is that in the matter of sexual assault, consent was only given if the other party had said or done something to clearly communicate consent.
“You just can’t assume through lack of resistance or lack of protest that consent has been given,” Mr Speakman said.
The second reform is the changing of the mental, “reasonable grounds” test.
“To have a reasonable belief, an accused will have to have taken steps,” he said. These steps would need to be an act or something said to verify the complainant’s consent. A thought process is not sufficient enough to be considered a step, Mr Speakman added.
New sexual assault laws will rework the definition of consent
Mr Speakman said that the definition of consent would also be reformed. The emphasis will be on consent as something “given voluntarily and freely by agreement.”
“That it [consent] can be withdrawn at any time, that consent to one sexual activity is not consent to any other sexual activity and that self-intoxication of the accused is not an excuse for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 able to give juries new directions in an effort to dispel myths about rape. Mr Speakman says that he is aware these changes will not magically eradicate the issue of sexual violence in Australia.
“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,” he said.
The reforms are expected to be instituted in the next session of parliament.