NSW Law Reform Commission - Have Your Say!

Calling all feminist activists!!


The NSW Law Reform Commission is reviewing the law surrounding consent in relation to sexual assault. They have released the Consultation Paper, which you can have a look at. To review the law, they are seeking feedback in the form of actual, formal submissions and from a survey they have created. You can remain anonymous. I urge you to respond to this review.

This is a way to get your voice heard, and we must collectively shout our displeasure with the current law. The current consent law has a blind spot, which I’ve written about before but to save your clicks, I’ll summarise: In NSW, when someone is on trial for sexual assault, the crown has to prove beyond a reasonable doubt that the complainant did not consent.

Anthony Whealy QC, a former Justice of the Supreme Court of NSW, explained what effect this phrasing has within trials:

“(this creates) the unfortunate consequence of focusing almost exclusively on the complainant ... and so the trials tend to excoriate the complainant, unfairly in many cases, and when you have a jury there, they can’t help but be affected by that sort of cross examination which can be very powerful and very damaging (to the complainant).

 …(in trials, the crown must also prove)… that the defendant knew that consent was not given or was reckless as to whether consent was given. Or if he had a belief that consent was given, that it has to be on reasonable grounds."

This phrasing resulted in a high profile case that was resolved with the Judge’s acknowledgement as follows:

“Whether or not she consented is but one matter. Whether or not the accused knew that she was not consenting is another.”

So we have a grey area. A blind spot. We need to correct it. Even if you don’t make a formal submission, it’s easy to do the survey. I’ve put together a quick explanation of each question within the survey, in case it’s too daunting to tackle.

I will stop here to explain that I am not a lawyer, my explanations are my own, and I only seek to share the survey in the hopes that more people will feel comfortable partaking.

The survey The NSW Law Reform Commission provided will take 5 to 10 minutes. I’ve put the questions down here so you can look and have a think before you start the survey, if that's your thing. It is split into parts, the survey constructors took time to explain what each part is about in a very clear way.

The Survey:

Steps 1 to 3 are generic questions about confidentially, contact details and the like.  If you select you want to remain confidential, the questions start at number 2.

The survey starts with a bit of background to the law.

Question 4: What are your views about the law of consent in NSW?
After this question is a free text box asking for your views on the current law.

Question 5: Do you think the law of consent should change?
Either way, (yes or no) you’ll be prompted to advise why. You don’t have to answer, but I answered yes, and spoke about the legal grey area we currently have, highlighted by the Lazarus failure.

A definition of consent is provided, as follows.

The law says someone “consents” to sex if they “freely and voluntarily” agree to it. The fact that a person doesn’t physically resist sex isn’t enough to show they consented to it.
Some people think this definition of consent should be changed. Some say the law should recognise a person’s consent only when they communicate it clearly through their words or actions. This is sometimes known as an “affirmative consent” standard.

Question 6: What do you think about the current definition of consent?
This is just a free text response.

Question 7:  Do you think the law should include an “affirmative consent” standard?
This is a yes or no answer, with a free text field so you can explain. I said yes.
To help understand this: Affirmative consent is the model used by Tasmania or Victoria. According to Anthony Whealy QC, a former Justice of the Supreme Court of NSW, in these states: “the crown must prove that the complainant gave free agreement to sexual intercourse taking place ... and the judge is asked to direct the jury that if the complaint said or did nothing at the time of the sexual intercourse, that means she did not give her free agreement.”
The survey then advises “The law lists some situations where a person can’t consent to sex.”

Question 8: In general, do you think the law should list some situations in which a person can’t consent?
This is a question whether you think the law should list situations.

Question 9: The law says that people can’t consent to sex in any of the following situations. Please tick the situations that you think should stay in this list.
e.g. They are unconscious or asleep
This question is about which situations should be in the law or not. I am fine with them remaining in the law.

Question 10: Should other situations be added to this list?
You can select yes or no, and you have a space to explain.
More explanatory text follows.
The law also lists some other situations in which the prosecution may be able to show there was no consent.

Question 11: In general, do you think the law should list some situations in which it “may” be shown the person doesn’t consent?
This is another yes or no with an explanation.

Question 12: The law says that it may be proven that someone doesn’t consent if they have sex for any of the following reasons. Please tick the situations that you think should stay in this list.
e.g. they were intoxicated
Then we have explanatory text about consent, and how due to our laws, the prosecution must also prove the accused knew the other person didn’t consent.
This is a very key part of the survey, in my mind.
To prove the accused “knew” there was no consent, the prosecution must show the accused either:
• actually knew the other person didn’t consent
• was reckless about whether the other person consented, or
• had no reasonable grounds for believing the other person consented.

Question 13: What do you think about the need to prove the accused knew there was no consent?
This is just a free text box answer.
And this is where the real difference, as I see it, comes into play. Succinctly explained by Anthony Whealy QC, a former Justice of the Supreme Court of NSW, explained what effect this phrasing has within trials:
“(this creates) the unfortunate consequence of focusing almost exclusively on the complainant ... and so the trials tend to excoriate the complainant, unfairly in many cases, and when you have a jury there, they can’t help but be affected by that sort of cross examination which can be very powerful and very damaging (to the complainant).
…(in trials, the crown must also prove)… that the defendant knew that consent was not given or was reckless as to whether consent was given. Or if he had a belief that consent was given, that it has to be on reasonable grounds.”
Our laws have the side effect on focusing how the accuser showed they didn’t consent, rather than how the accused understood they HAD consent.

Question 14: Some people say a person should take steps to check if their sexual partner consents. If they don’t take these steps, they shouldn’t be allowed to argue they believed there was consent. Do you agree?
This is a yes no answer, with space to explain.
I said yes. I do think that we as sexual partners owe it to everyone involved to “check in” – and I don’t think this is an onerous ask. My thinking on this runs along the lines of: If you can’t be bothered to check in, would be too embarrassed by the question, or are too scared to ask – why are you having sex with this person?
And that’s it! That’s all there is, really easy to do, so please have a go!
(https://www.surveymonkey.com/r/C62SJSF)




Tee Linden