Review of Consent Laws: An Update
As I’ve written previously ( click here ), the laws surrounding sexual consent in NSW have a patchy grey area. 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. NSW laws are structured in a way that puts the onus of proof on the victim: the victim must prove they did not give consent. The best practice example of consent laws in Australia is said to be either Tasmania or Victoria, wherein (according to Anthony Whealy QC, a former Justice of the Supreme Court of NSW): “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.” As I’ve stated previously, this change switches the focus from the complainant to the accused. In this case, instead of focusing on the ways the complainant