At present, it is a crime in NSW for a person to engage in any sexual touch or act if the person “knows” that the other person does not consent. For trial purposes, the accused comes to “know” if the accused “has actual knowledge, is reckless or has ‘no reasonable grounds for believing’ the other person consents.”
The bill aims to redefine “consent” by providing a clearer standard: that there is no consent to sexual activity “unless they said or did something to communicate it.” Additionally, an accused’s belief that consent existed “will not be reasonable in the circumstances” unless the accused said or did anything “within a reasonable time before or at the time of the sexual activity.”
The government said that this standard strengthens the affirmative model of consent and addresses grey areas in sexual offence trials.
The legal reforms also propose new jury directions for judges that seek to address common misconceptions about consent and ensure that a complainant’s evidence is assessed fairly. The new directions include clarifications to the jury, such as “sexual assault can occur in many different situations, including between acquaintances or people who are married or in a relationship”; and “sexual offences aren’t always accompanied by violence, threats or physical injuries.”
“The bill reinforces the basic principle of common decency that consent is a free choice involving mutual and ongoing communication and that consent should not be presumed,” said Mark Speakman, attorney general and minister for prevention of domestic and sexual violence, in a media release. “If you want to have sex with someone, then you need to do or say something to find out if they want to have sex with you too – under our reforms, it’s that simple.”