The State’s sexual consent laws are to move to an affirmative model with the introduction of reforms to help address rates of sexual violence.
Introduced by Attorney General Mark Speakman, the Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021 is expected to simplify State laws, make sexual consent laws easier to follow and ensure more effective prosecutions of sexual offences.
Mr Speakman said the Bill would reinforce the basic principle of common decency that consent should not be presumed and was a free choice that involved mutual and ongoing communication.
“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,” Mr Speakman said.
“This affirmative model of consent is not onerous,” he said.
“It does not require a written or video agreement or a script, or stifle spontaneity, as some have suggested.”
Mr Speakman said the reforms would set clearer boundaries for consensual sex and better support victim-survivors who “courageously come forward to report sexual assault”.
The Attorney General said the Bill built on legislative drafting suggested as part of the NSW Law Reform Commission’s Report 148.
He said the reforms would also make it clear that a person did not consent to sexual activity unless they said or did something to communicate consent.
“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 – to find out whether the other person consents to the sexual activity,” he said.
“This requirement will not apply to an accused person who had a cognitive or mental health impairment that caused them not to say or do anything to ascertain consent.”
Mr Speakman said the full suite of reforms also included five new jury directions available for judges to give at trial to address common misconceptions about sexual assault and behavioural responses; targeted education programs for judges, legal practitioners and police; a research project to improve understanding of victim-survivor experiences with the criminal justice process; and community awareness campaigns.
He said the reforms were expected to become law in mid-2022.
Commissioner of the NSW Police Force, Mick Fuller welcomed the reforms, which he said would improve victim outcomes and boost confidence in the judicial process.
