The Law of Consent and Sexual Assault Discussion Paper may 2007 Criminal Law Review Division Attorney General’s Department

Address

NSW Attorney General’s Department

GPO Box 6

Sydney NSW 2001

Fax: (02) 9228 7128

Deadline

1. 
   Introduction
   

In April 2006 the Attorney General’s Department released the Report of the Criminal Justice Sexual Offences Taskforce entitled Responding to sexual assault: the way forward.

1. 
   Should NSW adopt a statutory definition of consent in the Crimes Act 1900 or are the current common law directions adequate?
   

2. 
   If a statutory definition is to be adopted should it be based on the:
   

• 
  Victorian Definition – free agreement;
  
• 
  Queensland definition - freely and voluntarily given by a person with the cognitive capacity to give consent; or
  
• 
  UK definition - a person consents if he agrees by choice and has the freedom and capacity to make that choice; or
  
• 
  The Canadian formulation of - the voluntary agreement of the complainant to engage in the sexual activity in question; or
  
• 
  some combination of the above?
  

3. 
   Should the term recklessness be codified?
   

4. 
   Is the term indifference preferable to the term reckless?
   

5. 
   Should unlawful detention of the complainant vitiate consent?
   

6. 
   Should the fact that the complainant is unconscious, asleep or affected by drugs be added as a factor that vitiates consent?
   

7. 
   Should s.61R be redrafted so as to provide a non-exhaustive list of factual circumstances that may vitiate consent?
   

8. 
   Should s.61R be amended to provide that extortion, threats to humiliate, disgrace, or harass may vitiate consent?
   

9. 
   Should s.65A be repealed?
   

10. 
    Should the abuse of authority or professional or other trust vitiate consent?
    

11. 
    Should the recommendations of the Taskforce relating to vitiation of consent be implemented?
    

12. 
    If the common law test was modified, what should it look like and how might it work in practice?
    

13. 
    What is the purpose for creating a secondary, but lesser offence?
    

14. 
    If s.61I is redrafted with the word ‘reckless’ instead of ‘indifference’ will it assume its common law meaning?
    

15. 
    What is the reasonableness standard? Is it the standard of a reasonable person in the community, or the reasonableness of a person in the position of the accused?
    

16. 
    Should there be some evidence of ‘reasonable steps’ that can be pointed to by the defence before the second offence can be left to the jury?
    

17. 
    Should a second offence with a lower maximum penalty be created so that the trial judge does not have to make findings of fact with respect to the basis upon which the jury convicted? This is presently done with respect to many offences and a common problem when sentencing.
    

18. 
    Would the creation of a lesser offence, presented to the jury as a statutory alternative, lead to compromised verdicts on behalf of the jury who may select the ‘middle option’ even though the evidence does not support it?
    

19. 
    If a new offence is created with a maximum penalty of 5 years imprisonment, would these offences be Table offences for election by the Crown?
    

In NSW, sexual offences against adults, with the exception of incest and attempt incest¹, require the prosecution to prove that the complainant did not consent to the sexual conduct. This is part of the actus reus² of the offence, and a matter of fact for the jury to determine by reference to the complainant’s subjective state of mind at the time the sexual conduct occurred.