Lawyers float risk of ‘serious injustice’ that proposed consent laws may cause

By Melissa Coade

May 27, 2021

Mark Speakman
NSW attorney-general Mark Speakman. (AAP Image/Dan Himbrechts)

The NSW Bar Association says proposed changes to the criminal law in NSW about rape and sexual assault are ‘ill-considered’ and do not make the issue of consent broad enough to cover a whole encounter.

Proposed changes to the definition of consent in establishing sexual assault in NSW, announced by Attorney-General Mark Speakman this week, have barristers in the state warning that it could lead to a significant injustice before the courts.

The suite of criminal law reforms propose that a person must say or do something to communicate consent before engaging in sexual activity. If a person does not positively indicate they are willing to engage in the sexual activity, the law will not recognise consent.

The NSW reforms mirror affirmative consent model amendments to sexual assault laws in Tasmania. As Rachael Burgin from Swinburne University of Technology explained in The Conversation the new approach shifts from a ‘no means no’ standard to a ‘yes means yes’ one.

NSW Bar Association’s president Michael McHugh SC said that the reforms would criminalise sexual relations that were actually consensual. According to the Sydney barrister, there are many unproblematic sexual encounters where consent is not an issue and the proposals could be interpreted to mean that even the smallest gesture required an affirmative answer. 

“[The proposed reforms] appear to provide that consent to one type of sexual activity is not on its own consent to another sexual activity. In other words, every single sexual touching and act in the course of a physical liaison will need positive consent in order to avoid criminalisation,” McHugh said.

“For example, if a person is consensually having sexual intercourse with another, they will have to obtain affirmative consent prior to placing a hand on the breast or buttock of the other person.”

According to reports by The Sydney Morning Herald, the NSW AG said consent could be construed with a facial expression, gesture or explicit words. The prosecution would still be required to prove beyond a reasonable doubt that the three elements of sexual assault (that the assault occurred; that the victim did not consent; and that the offending party knew the victim did not consent) for a person to be guilty.

“We want clear and simple rules of engagement. So this is not just about strengthening the process for compliance, it’s also about simplifying the law, and making it easier to comply with,” Mr Speakman told the paper.

“There have been calls for reform in NSW, in Australia and indeed across the world, of how we handle sexual violence complaints. Those calls have reached a crescendo in the last six months.”

The NSW Bar Association takes the view that the affirmative consent model would ‘significantly diminish the status’ of the crime of sexual assault. This is because sexual assault would be reduced to a crime that included negligence without adequate regard to gradations in an accused person’s culpability (reflected in maximum penalties that were appropriately balanced), McHugh said. 

“The New South Wales Bar Association calls upon the government to reconsider the implications of this ill-considered proposal, which goes beyond the model recommended by the New South Wales Law Reform Commission in its recent report,” he added.

The NSW Law Reform Commission published its report on sexual consent laws in the state last November. The report did not recommend the affirmative consent model.


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