New South Wales Law Reform Commission: Consent in relation to sexual offences (draft proposals)
This submission outlines ANROWS research relevant to the practical effects of the New South Wales Law Reform Commission’s draft proposals for changes to the law of consent and knowledge of consent in the Crimes Act 1900 (NSW) put forward in October 2019.
With most adult sexual assaults perpetrated by intimate partners, the submission focuses on an intimate partner context as the main lens to assess the practical effect of the draft provisions. This submission builds on two earlier ANROWS responses to the Commission’s review of consent and knowledge of consent in relation to sexual assault offences in the Crimes Act 1900 (NSW).
The submission provides support for the draft provisions put forward by the Commission, including the changes to structure and language, interpretive principles, and clarifications concerning the definition of consent. In particular, the submission commended the Commission’s use of simpler, modern and inclusive alternatives to the pre-existing language which would make the law easier to understand and help to provide a firm foundation for community education initiatives about consent.
Recommendations made in this submission include the following:
- “Intimate partner” terminology should be included in the interpretative principles to emphasise that sexual assault is also perpetrated by intimate partners and counter the myth that “stranger rape” is more prevalent than intimate partner sexual violence.
- A legislative note attached to a provision about consent to “sexual activity performed in a particular way” should be strengthened to also provide support to women experiencing reproductive coercion, based on evidence that suggests domestic and family violence does not facilitate safe negotiation of contraception or sex.
- “Domestic and family violence” should be included directly in the legislation rather than only in the jury directions. In particular, the term should be included in the non-exhaustive lists of circumstances that involve non-consent to ensure the list captures a range of behaviours that might be employed by an intimate partner perpetrator such as subtle, emotional or psychological manipulation.
- Intimate partner terminology and information about intimate partner sexual violence should be inserted into the jury directions to emphasise that sexual assault and consent can look different in an intimate partner context. For example, within the context of sexual routine and a presumption of continuous consent between the intimate partners, unwanted sex may be agreed to, or asking for sex to stop may not be an option.
The NSW Government supported 44 of the Commission’s recommendations and implemented changes to its consent laws in June 2022. The aims of the reforms included clarifying that consent is a free and voluntary agreement that should not be presumed and addressing misconceptions about consent that can arise in trial proceedings.
Australia’s National Research Organisation for Women’s Safety. (2019). Consent in relation to sexual offences (draft proposals) [Submission]. ANROWS.