- There will be changes to Sexual Assault laws in NSW whereby consent will only be given if the other party says or does something to communicate consent.
- The Accused will have to prove they have said or done something reasonably in the circumstances to ascertain consent.
- The new laws could see the accused found guilty unless they have taken positive measures to obtain consent.
After the NSW Law Reform Commission’s reevaluation of the definition of consent in sexual assault offences in November 2020, 44 recommendations have been made and there are ongoing discussions regarding changes that will be made to sexual assault laws in NSW. Of the 44 recommendations, the Government is adopting or adopting in principle, all recommendations. One of the changes being introduced is an ‘affirmative consent model’.
Under the new model, for consent to be provided, the other party needs to say or do something positive to communicate consent and the accused will need to prove that they have said or done something reasonable in the circumstances to ascertain consent and to overcome the ‘reasonable grounds’ test. If they cannot prove that they have taken reasonable measures to obtain consent, then they can be found guilty of charges relating to sexual assault.
Under the new Laws, the following will also apply:
- Consent can be withdrawn at any time;
- Consent to one sexual activity does not consent to any other sexual activity; and
- Self-intoxication of the accused is not an excuse for failing to take reasonable steps in forming a reasonable belief that consent was provided.
Currently, it is estimated that only 3 per cent of sexual assault matters result in a conviction against the accused person.
This news comes after Jarryd Hayne, a professional footballer was found guilty after trial of sexual assault. One of the main issues in Jarryd Hayne’s trial was the issue of consent. Further, this news comes after NRL player Jack De Belin was found not guilty of one of six charges relating to an alleged sexual assault of a woman in Wollongong. The jury was hung about the other five charges for the second time. A decision will be made shortly concerning whether Jack De Belin will stand trial for the third time to the balance of the charges.
We will provide further updates about the changes to sexual assault laws as information is released.
ABOUT LUISA GAETANI:
Luisa is a Senior Associate at Coutts Lawyers & Conveyancer and head of our Family and Criminal Law divisions. Luisa has practised solely in the areas of criminal and family law. It is her sensitive yet pragmatic approach that has allowed her to develop a strong rapport and build trusting relationships with her clients. Should a client’s matter proceed to court, Luisa has the skillset and experience to assist her clients through this process and where required, will draw upon her network of barristers to further benefit her client’s outcomes.
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This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever to this blog, including all or any reliance on this blog or use or application of this blog by you.