NSW government proposes historic reforms to sexual consent laws

The NSW government has introduced historic reforms to sexual consent laws through a bill that it said will "strengthen, clarify and enhance" consent laws, "address misconceptions" about consent in trial proceedings and "improve the justice system's response" to allegations of sexual offences.

The Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021 builds on legislative drafting suggested by the NSW Law Reform Commission. The commission reviewed sexual consent laws and conducted a consultation with the public as well as with field experts for almost three years.

The commission then recommended legislative amendments based on the findings. The draft bill was introduced to parliament on 20 October.

At present, it is a crime in NSW for a person to engage in any sexual touch or act if the person "knows" that the other person does not consent. For trial purposes, the accused comes to "know" if the accused "has actual knowledge, is reckless or has 'no reasonable grounds for believing' the other person consents."

The bill aims to redefine “consent” by providing a clearer standard: that there is no consent to sexual activity "unless they said or did something to communicate it." Additionally, 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."

The communication 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." Nonetheless, the bill will provide the criteria for such an exception.

The government said that this standard strengthens the affirmative model of consent and addresses grey areas in sexual offence trials.

The legal reforms also propose new jury directions for judges that seek to address common misconceptions about consent and ensure that a complainant's evidence is assessed fairly. The new directions include clarifications to the jury, such as "sexual assault can occur in many different situations, including between acquaintances or people who are married or in a relationship"; and "sexual offences aren't always accompanied by violence, threats or physical injuries."

"The bill reinforces the basic principle of common decency that consent is a free choice involving mutual and ongoing communication and that consent should not be presumed," said Mark Speakman, attorney general and minister for prevention of domestic and sexual violence, in a media release. "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."

NSW Police Commissioner Mick Fuller said a clear definition of consent was vital when dealing with sexual assault matters to ensure effective prosecutions.

"Reforms which provide clarity in a legal sense about consent are welcomed by police. As a frontline agency that often sees the devastating impact of these crimes firsthand, I fully support the government's reforms to consent laws which will improve victim outcomes and boost confidence in the judicial process," he said.

Saxon Mullins, survivor advocate and director at Rape & Sexual Assault Research & Advocacy, also welcomed the bill.

"These reforms mean so much to so many survivors who understand firsthand the difference this bill can make," Mullins said. "While progress can feel slow, I know this bill is a huge leap forward and will see NSW leading the way in consent law around the country."