New South Wales Law Reform Commission: Re: Consent in relation to sexual offences (Consultation paper 21)
This submission outlines ANROWS research relevant to the review of consent and knowledge of consent in relation to sexual assault offences in s 61HA of the Crimes Act 1900 (NSW).
ANROWS responds to the Law Reform Commission’s Consultation paper 21 with a focus on how s 61HA of the Crimes Act 1900 (NSW) impacts women as victims and survivors of sexual assault in the context of intimate partner violence. ANROWS emphasises that women from some priority groups may experience higher rates of sexual violence and/or face additional barriers to accessing support and justice.
ANROWS also articulates support for a statement from Rape & Domestic Violence Services Australia emphasising that the implementation of consent law will be impacted by the attitudes, knowledge and expertise of legal actors and the availability of services to support victims and survivors to access the legal system.
ANROWS provides suggestions and endorsements in the submission, including:
- Support for an affirmative consent standard.
- Support for the lists of circumstances that negate consent, or may negate consent, to be amended to include domestic and family violence. This reflects that the climate of ongoing fear created by domestic and family violence means that consent arguably cannot be freely given.
- Support for the proposal that the definition of “sexual intercourse” be amended to “penetration of the genitalia or anus of a person”.
- Agreement that jury directions can be important to address community misconceptions and attitudes towards consent and “rape myths”.
- Agreement that expert evidence could also be useful to address “rape myths”.
In addition, ANROWS suggests that further consideration should be given to content and use of the list of circumstances that negate consent and the list of circumstances that may negate consent.
This submission follows a prior submission on consent provisions in the Crimes Act 1900 (NSW) which was provided to the Law Reform Commission in July 2018. ANROWS has since provided another submission to the Law Reform Commission on the draft proposals for change to the law of consent and knowledge of consent in the Crimes Act 1900 (NSW), in October 2019, which is available online here.
Australia’s National Research Organisation for Women’s Safety. (2019). Re: Consent in relation to sexual offences (Consultation paper 21) [Submission]. ANROWS.