By Paul Gregoire and Ugur Nedim
In response to a broad debate about sexual violence towards women both globally and across the country, as well as a local focus around the 2013 alleged Lazarus sexual assault case in Kings Cross, new sexual consent laws took effect in NSW on 1 June last year.
Passed in November the year prior, the Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021 created the new consent laws based on the findings of the NSW Law Reform Commission Consent in Relation to Sexual Offences report, which was tabled in parliament in November 2020.
In his second reading speech on the bill, NSW attorney general Mark Speakman indicated that the state government supported, or supported in principle, all 44 recommendations made by the NSWLRC.
The state’s chief lawmaker added that his bill goes a step further than the inquiry, as it makes clear that “an accused’s belief that consent existed will not be reasonable in the circumstances if the accused did not say or do anything… to find out whether the other person consents.”
A definition of consent was first inserted into the Crimes Act 1900 (NSW) on 1 June 2008, under section 61HA. And this definition was a key focus for the NSWLRC, although midway through its inquiry, due to 2018 child sexual abuse reforms, the consent definition shifted into section 61HE.
Along with the provision of a new broader definition of sexual consent, the 2021 amendments also provided for a general overhaul of the sexual offence definitions contained in division 10 subdivision 1 of the Crimes Act, as well as new guidelines regarding judges directing juries in relation to consent.
Agreeing to sex
The main amendment brought by the reform bill is the new definition of consent under section 61HI of the Crimes Act. This stipulates that a person consents to sexual activity if, “at the time of sexual activity, the person freely and voluntarily agrees to the sexual activity”.
The stipulation around consent occurring at the time of sexual activity is new. And recently inserted section 61HH defines sexual activity as sexual intercourse, sexual touching or a sexual act.
Withdrawal of consent can happen at any time via “words or conduct”, and any sexual activity after this point is nonconsensual.
Not offering “physical or verbal resistance to a sexual activity” doesn’t alone constitute consent.
Consent to one form of sexual activity doesn’t ensure consent has been provided to another form. And consenting to sexual activity with a person on one occasion, doesn’t constitute having consented to sex with that person or any other individual in the future.
“Consent can be communicated by words or actions, including, for example, reciprocating body language or affirming remarks throughout a sexual encounter,” Speakman explained in parliament.
No presumption of consent
Along with the definition of consent in section 61HI, part 3, division 10, subdivision 1A of the Crimes Act also contains a number of other sections that serve to hone the legal understanding of consent.
New section 61H underscores that everyone has the right to choose whether to participate in sexual activity, that consent is not to be presumed, and “consensual sexual activity involves ongoing and mutual communication, decision-making and free and voluntary agreement between the persons”.
The offences these consent laws apply to are set out under section 61HG. These include sexual assault, aggravated sexual assault, aggravated sexual assault in company, sexual touching, aggravated sexual touching, a sexual act and an aggravated sexual act.
Section 61HJ then provides a list of circumstances in which consent is not possible. This includes no verbal or physical communication of consent, no capacity to provide consent and being too affected by alcohol or any other drug to be able to make a decision in regard to sex.
Further circumstances where consent is precluded involve participation due to “fear, fear of force or fear of serious harm” or “coercion, blackmail or intimidation” or due to the abuse of a relationship of authority.
A person is also not considered to have provided consent if they’re unlawfully detained, they were mistaken about the nature of the sexual activity, for reasons of mistaken identity or simply due to marriage, as well as having participated due to fraudulent persuasion.
While section 61HK sets out when an accused is taken to know that consent is not forthcoming, which includes when there has been no indication of consent, that the accused has been reckless to it or if the accused had a belief that consent given was not reasonable under the circumstances.
This section also stipulates that a “belief that the other person consents to sexual activity is not reasonable if the accused person” did or said nothing to find out this was the case, although this final stipulation doesn’t apply to those with a cognitive or mental health impairment.
Sexual offences defined
The Sexual Consent Reforms Bill further updated and clarified the definitions of some of the main sexual offences contained under part 3 division 10 subdivision 1 of the Crimes Act, in accordance with the recommendations of the NSWLRC review.
Updated section 61HA of the Crimes Act defines sexual intercourse as penetration of the genitalia or anus by any part of another person’s body or any object, the insertion of genitalia into a person’s mouth or the application of the mouth or tongue to female genitalia.
Sexual touching is defined in section 61HB, as touching another with any part of the body, including through clothing, or with any other object. When deciding whether this touching has occurred, the body parts touched should be considered, as well as whether the accused was aroused.
While a sexual act is define under section 61HC, to mean any act, other than touching, that’s consider sexual in nature. And in ascertaining whether a sexual act has occurred, the same characteristics that apply in establishing sexual touching should be considered.
Directing the jury
The final changes made by the sexual consent legislation were amendments to the Criminal Procedure Act 1986 (NSW), under newly created chapter 6 part 5 division 1 subdivision 3, with sections 292 to 292E setting out directions a judge can give to a jury in relation to consent.
These include that non-consensual sex can happen in many different circumstances to many different people, that there is no typical response to sex crimes, that there can be an absence of violence or threats involved, and that appearance or intoxication are no indication of consent given.
“This bill clarifies, simplifies and modernises NSW consent law,” Speakman said in conclusion. “This is not just about holding perpetrators to account but changing social behaviour. The reforms will therefore be accompanied by extensive community education.”
“The law is only one part, and probably not the main part, of how we tackle sexual violence in our community.”
