Affirmative consent: What the ‘common sense’ NSW law reforms mean

The Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 has passed NSW Parliament. It will take effect on proclamation which is expected to be in May 2022.

Context

The driving force for these reforms has been the powerful advocacy of Saxon Mullins who bravely shared her lived experience in a Four Corners episode: ‘I am that girl’. This resulted in the NSW Attorney General, the Hon. Mark Speakman SC MP, asking the NSW Law Reform Commission (‘NSWLRC’) to conduct a review into consent in relation to sexual offences in May 2018.

In November 2020, the NSWLRC Report was tabled in Parliament and made 44 recommendations. The NSW Government responded in May 2021 expressing support or support in principle for all of the recommendations. The Government also went a step further than the NSWLRC recommendations, introducing affirmative consent. Once the legislation commences it will be clear that generally an accused person’s belief in consent ‘is not reasonable if the accused person did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person consents to the sexual activity’ (Crimes Act 1900, s 61HK(2)).

We warmly welcome the passing of this legislation and the vital conversations that have been taking place about consent.

Affirmative consent

A central and important feature of this new legislation is the introduction of affirmative consent.

The Act will make clear in the objective of Subdivision 1A that consent involves ‘ongoing and mutual communication’ and ‘free and voluntary agreement’ and ‘is not to be presumed’  (Crimes Act, s 61HF).

The definition of consent will continue to require free and voluntary agreement (Crimes Act, s 61HI(1) and will also make clear that ‘consent to a particular sexual activity, is not, by reason only of that fact, to be taken to be consent to any other sexual activity’ (Crimes Act, s 61HI(5)). Further, that:

‘A person who consents to a sexual activity with a person on one occasion is not, by reason only of that fact, to be taken to consent to a sexual activity with-

1. that person on another occasion, or
2. another person on that or another occasion’ (Crimes Act, s 61HI(6)).

One of the circumstances in which there will be no consent is if ‘the person does not say or do anything to communicate consent’ (Crimes Act, s 61HJ(1)(a)). This is intended to recognise the ‘freeze’ response which can be a common response to trauma. As the Attorney General notes in his Second Reading Speech, ‘Silence does not mean consent, nor should consent be inferred when a person remains unresponsive’ (Second Reading Speech, Legislative Assembly Hansard, 20 October 2021).

Another significant change is to the knowledge element. While provisions relating to actual knowledge and recklessness to consent will largely remain the same, the reasonable grounds test will be replaced with a reasonable belief test – looking at all the relevant circumstances. As noted above, the accused will need to say or do something to ensure there is consent for there to be a reasonable belief the other person consented. Exceptions to this will apply where the accused can show at the time of the sexual activity that they had a cognitive or mental health impairment, provided ‘the impairment was a substantial cause of the accused person not saying or doing anything’ (Crimes Act, s 61HK(3)).

Single list of circumstances in which no consent

The legislation will introduce a single list of non-exhaustive circumstances in which there is no consent (Crimes Act, s 61HJ). This is important as it will simplify the law. Currently there is a list of factors that negate consent and factors that may negate consent.

Some of the circumstances in which there is no consent will be more clearly framed. For example, while currently one of the circumstances where consent may be negated includes if the complainant is ‘substantially intoxicated’ the focus will soon shift instead to the complainant’s capacity to consent, that is, there is no consent if ‘the person is so affected by alcohol or another drug as to be incapable of consenting to the sexual activity’ (Crimes Act, s 61HJ(1)(c)).

Better recognition of sexual violence within a context of domestic and family violence and abuse

The new legislation will better recognise sexual violence within a context of domestic and family violence and abuse. This will occur through clarifying and expanding the list of circumstances in which there is no consent. Also, new jury directions will be introduced.

Circumstances of no consent

There will be clearer recognition of the different ways people can be coerced into sexual activity, including through ‘force, fear of force or fear of serious harm of any kind’ which will extend beyond including people to also include harm or fear of harm to animals or property (Crimes Act, s 61HJ(1)(e)). The reference to ‘serious harm of any kind’ is important to emphasise that harm need not be by physical harm. Further, this provision will apply regardless of ‘when the force or the conduct giving rise to the fear occurs’ (Crimes Act, s 61HJ(1)(e)(i)), or ‘whether it occurs as a single instance or as part of an ongoing pattern’ (Crimes Act, s 61HJ(1)(e)(ii)). We welcome the clarity that fear of harm need not be present immediately before or during the sexual violence. This is particularly important in relation to survivors of domestic violence and abuse where there are long-term patterns of abuse.

There will be clearer recognition of ‘coercion, blackmail or intimidation’ (Crimes Act, s 61HJ(1)(f)).

We also welcome including circumstances when a person is ‘overborne by the abuse of a relationship of authority, trust or dependence’ (Crimes Act, s 61HJ(1)(h)). The inclusion of ‘dependence’ is intended to better capture non-consensual activity in circumstances where a person with a disability or an elderly person dependent on a formal or informal carer for day-to-day needs participates in non-consensual sexual activity with the carer, for example, because they are fearful of withdrawal of such support.

Jury Directions

The 2017 National Community Attitudes Survey on violence against women highlights that rape myths continue to abound. For example:

• More than one in three believe a woman is more likely to be sexually assaulted by a stranger than someone she knows;
• ‘Nearly one in five are not clear that coerced sex in marriage is against the law’;
• One in ten either agree that it is only rape if a woman physically resists or do not know (Webster et al, Australians’ attitudes to violence against women and gender equality. Findings from the 2017 National Community Attitudes toward Violence against Women Survey, ANROWS, 2018).

There will be a jury direction that recognises the ‘many different circumstances’ in which non-consensual sexual activity takes place as well as this occurring between ‘different kinds of people’, with a non-exhaustive list including people who know each other, are married or in a relationship with each other (Criminal Procedure Act 1986, s 292A).

Other jury directions will respond to other rape myths. For example, one jury direction will make clear a person can be sexually assaulted but have no physical injury or may not have been threatened with physical injury or violence (Criminal Procedure Act 1986, s 292C). Another jury direction will highlight there is ‘no typical or normal response to non-consensual sexual activity’, some people may respond by freezing and warns against relying on ‘preconceived ideas’ (s 292B). A further jury direction will acknowledge that trauma affects people differently and so some people may show ‘obvious signs of emotion or distress’ and others may not (s 292D).