On 01 June 2022, the new laws about consent in sexual offences commenced. They are contained in Part 3, Division 10, Subdivision 1A of the Crimes Act 1900 (NSW) which apply to offences of sexual act, sexual touching and sexual assault.
To secure a conviction for a sexual offence, the prosecution must prove that the
complainant was not consenting to the sexual activity.
Sexual assault lawyers opine that the new laws seek to highlight the circumstances
where consent is an issue in the trial and provides guidance to the Courts regarding
consent.
Consent
The new laws provide for circumstances in which there is no consent in section 61HJ
Crimes Act 1900 (NSW) which include:
if a person does not do anything or say anything to communicate their consent,
- if the person does not have the capacity to consent due to age or cognitive impairment,
2. if the person is affected by drugs or alcohol as to not be able to consent.
3. if the person participates in the sexual activity because of fear of force or serious harm.
4. if the person participates in the sexual activity because of blackmail or intimidation or coercion.
5. if the person participates in the sexual activity because they are unlawfully detained.
6. if the person participates in the sexual activity because of fraudulent inducement.
An example of fraudulent inducement leading to no consent may be made out if a person pays for sex work with fraudulent cheques.
It should be noted that the above does not limit the grounds for the prosecution to prove that there was no consent to the sexual activity.
The new laws have also provided guidance on consent generally in section 61HI Crimes Act 1900 (NSW) which include the following:
- consent is when a person freely and voluntarily agrees to sexual activity,
2. consent can be withdrawn with words or conduct at any time.
3. a person who does not offer physical or verbal resistance to sexual activity cannot be said to be consenting because of only that fact,
4. consent to a particular sexual activity is not consent to a different sexual activity,
5. A person who has previously consented to sexual activity does not by that fact
consent to subsequent sexual activity.
Recently, three men were convicted of various sexual offences committed during a bucks party in Newcastle NSW. One of the men convicted argued that he never participated in sexual activity which was rejected by the jury. The other two convicted men argued that all the sexual activity was consensual. The juries verdicts mean that the convicted men’s version was rejected by the jury of 8 women and 4 men.
The issue of consent in sexual assault offences is complicated. For more information or to seek legal assistance from a sexual assault lawyer, contact Pannu Lawyers today.
