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New laws on offence of rape – “Yes means Yes”

The Attorney-General for New South Wales, Mr Mark Speakman SC, has recently confirmed that the Government is planning to introduce sweeping changes to the State’s sexual consent laws to protect the victim and deliver better outcomes for justice.

This involves amendments to Part 3, Division 10 of the Crimes Act 1900 (NSW).

How rape is defined at law?

Rather confusingly, NSW is the only jurisdiction in Australia where the offence of rape is legally referred to as ‘sexual assault’.  This is commonly mistaken with the separate offence referred to as ‘sexual touching’, which involves touching another person with any part of the body or anything else where the touching would be reasonably considered as sexual.

Sexual assault on the other hand, is when a person is engaged in an act of sexual intercourse without the consent of the other person.  Sexual intercourse is penetration of the vagina or anus by any part of another person’s body or any object, and this also includes oral sex. 

Since sexual assault can be a single or continuous act, consent can be withdrawn by the other person at any time.

Consent

The central issue around any sexual assault case is usually the question of consent. Consent is defined as an agreement to sexual activity, “freely and voluntarily” given, and (apart from certain exceptions) it is assessed only from the perspective of the accused person. In other words, what is key is the accused’s knowledge about consent.  

The accused’s knowledge about the consent (or the lack of consent) of the victim is considered from 3 perspectives:

  1. Whether the accused actually knew that the victim that did not consent.
  2. Whether the accused considered the possibility that consent might be in doubt but went ahead with the act anyway.
  3. Whether the accused had any reasonable grounds to believe that the victim did consent.

What are the proposed changes to the new Bill?

The changes to the sexual assault laws in New South Wales are going to be implemented through the Crimes Amendment (Enthusiastic Consent) Bill 2021. We anticipate that the Bill will likely be made into law by November 2021.

Two radical changes which are anticipated include:

  1. Imposing a condition whereby a person does not consent to sexual activity unless consent is communicated through act or speech; and,
  2. The accused’s belief that there was consent will not be reasonable unless they have first made an attempt to determine (through either speech or an act) whether or not consent has been given.

Alongside these changes in the law are new jury directions for trial judges overseeing sexual assault cases. Trial judges would be obligated to remind jurors that:

  1. Sexual assault can occur in all sorts of different situations and relationships. This includes acquaintances or people who are married.
  2. Sexual assault does not need to be accompanied by threats or violence.
  3. There is no typical or normal response to being sexually assaulted, and jurors should not rely on any preconceived ideas.
  4. The different ways people respond to trauma mean that some people may be emotionally distressed whilst giving evidence, and some may not. This should not be a point of bias.
  5. It cannot be assumed that consent was implied by the way a person was dressed, or the fact that they have consumed alcohol or drugs.

What will the offence of rape look like moving forward?

The incoming reforms are radical in the sense that they will change the way courts look at the offence of sexual assault. Whereas before the main legal question was the mind of the accused as to actual consent, or whether there was a reasonable ground(s) to believe consent was given, now the legal question will be whether there was actual consent from the view of the victim.

Essentially, the question has shifted from looking at the perspective of the accused to that of the victim. Or more accurately, from the accused’s knowledge of consent, to the victim’s communication of consent. In doing so, it is clear that the State Parliament is looking to close ‘loop-holes’ in the current law of not guilty verdicts because the jurors could not agree as to whether the accused had reasonable grounds to believe consent had been given.  

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