NSW will have strengthened and simplified sexual consent laws under proposed NSW Government reforms designed to protect victim-survivors and educate the community.
Today’s proposed reforms send a message to our local frontline services and courageous survivors’ that their calls for change have been heard.
We know that no law can ever erase the trauma of sexual assault, but we can work together to improve the State’s response to this serious issue, and to help reduce assaults happening in the first place.
That’s what these changes ultimately aim to achieve – fewer cases of sexual violence occurring in our communities.
The key proposed reforms include stipulating that:
(a) a person does not consent to sexual activity unless they said or did something to communicate consent, and
(b) an accused person’s belief in consent will not be reasonable in the circumstances unless they said or did something to ascertain consent.
The reforms respond to recommendations made in NSW Law Reform Commission (LRC) Report 148. In May 2018, Attorney General Mark Speakman asked the LRC to review consent laws. The LRC’s final report was published in November 2020, following significant community engagement with this issue.
The LRC received 110 preliminary submissions, 36 submissions in response to its Consultation Paper, and 51 submissions in response to its draft proposals. Almost 3,900 people accessed its online survey.
Mr Speakman said the Government is supporting, or supporting in principle, all 44 of the LRC’s recommendations, except to go further by clarifying that an accused person’s belief in consent will not be reasonable in the circumstances, unless they said or did something to ascertain consent.
“This means we will have an affirmative model of consent, which will address issues that have arisen in sexual offence trials about whether an accused’s belief that consent existed was actually reasonable,” Mr Speakman said.
“No one should assume someone is saying ‘yes’ just because they don’t say ‘no’ or don’t resist physically. Steps should be taken to make sure all parties are consenting.”
Amongst other changes, the reforms also introduce five new jury directions available for judges to give at trial to address common misconceptions about consent.
These directions will support complainants by ensuring their evidence will be assessed fairly and impartially, and that juries will be able to better understand the experiences of sexual assault survivors.
Education also plays a major role in preventing sexual assault, which is why the Government is boosting resources and engagement in schools.
The Government will improve the resources available for teachers and students, updating both the curriculum and the resources used to support students’ understanding, to reflect the changes brought about by these legal reforms.
Parents and carers will also be consulted to develop specific resources to support families.
In addition, the NSW Government has committed to fund a research project designed to improve our understanding of victim experiences with the criminal justice process, and deliver a targeted education program for judges, legal practitioners and police.
Another public education campaign is also under development to commence later this year, which will build on the success of the Government’s #makenodoubt campaigns.
A Bill to give effect to the reforms will be introduced to NSW Parliament later this year.