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



Download 272.28 Kb.
Page1/6
Date31.01.2017
Size272.28 Kb.
  1   2   3   4   5   6


The Law of Consent and Sexual Assault

Discussion Paper

MAY 2007

Criminal Law Review Division

Attorney General’s Department

Address


Please forward responses to:
Criminal Law Review Division

NSW Attorney General’s Department

GPO Box 6

Sydney NSW 2001


DX 1227 Sydney
Ph: (02) 9228 7258

Fax: (02) 9228 7128


This discussion paper is also available on the internet at www.lawlink.nsw.gov.au/clrd

Deadline


Responses must be received by 20 July 2007.

Index



1.

Introduction

4

1.1

Summary of issues

5

2.

Consent

7

2.1

What is meant by consent?

7

2.2

Recent Issues in NSW

7

2.3

Other Jurisdictions

9

2.4

Other common law countries

9

2.5

Taskforce Discussions

10

2.6

If a definition of consent is adopted, what should it be?

11

2.7

Exposure Draft

12

3

Vitiation of Consent

17

3.1

Circumstances that vitiate consent

17

3.2

Recent issues

18

3.3

Should the list of vitiating circumstances be expanded?

18

3.4

Unlawful detention

19

3.5

Unconscious, asleep, or affectation by drugs

19

3.6

Extortion, threats to humiliate, disgrace or harass

20

3.7

Abuse of authority or professional or other trust

22

3.8

Fraudulent misrepresentation – failure to disclose a communicable disease

23

3.9

Taskforce Recommendations

23

3.10

Exposure Draft

24

4

Fault Elements

12

4.1

Fault Elements – state of mind for criminal responsibility

12

4.2

Recklessness

13

4.3

Recent issues – what is the appropriate test for recklessness?

13

4.4

Case Study – R v Banditt

14

5

Objective Fault

25

5.1

Should NSW adopt an objective fault element in consent?

25

5.2

Other jurisdictions

27

5.3

United Kingdom

28

5.4

Canada

29

5.5

Victorian Law Reform Commission

29

5.6

What is the appropriate test?

30

5.7

Should the objective fault element be reflected in a separate offence with a lower maximum penalty?

31

5.8

Exposure Draft

33




Appendix 1

34




Appendix 2

38




Appendix 3

41




  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.


This Report made numerous recommendations aimed at improving the responsiveness of the criminal justice system to sexual assault complainants, whilst ensuring that an accused person receives a fair trial.
A number of the recommendations of the Taskforce have already been implemented in the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006, and further recommendations are contained in a second Bill currently before Parliament – Criminal Procedure Amendment (Vulnerable Persons) Bill 2007.
One of the most important issues considered by the Taskforce was the law relating consent as it applies to sexual assault.
A Draft Exposure Bill concerning the law of consent has been prepared, taking into account a number of the Taskforce Recommendations, and is attached to this Discussion Paper at Appendix 3.
1.1 Summary of issues


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




  1. 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?




  1. Should the term recklessness be codified?




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




  1. Should unlawful detention of the complainant vitiate consent?




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




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




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




  1. Should s.65A be repealed?




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




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




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




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




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




  1. 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?




  1. 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?




  1. 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.




  1. 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?




  1. 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?


2. Consent
2.1 What is meant by consent?

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.


In NSW there is no statutory definition of consent. The current NSW Bench Book states “consent involves conscious and voluntary permission by the complainant to engage in sexual intercourse with the accused”.3 It can be given verbally, or expressed by actions. Similarly, absence of consent does not have to be in words; it may be communicated in other ways. The common law provides that consent obtained after persuasion is still consent4. However, the law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse; s.61R(2)(d) Crimes Act 1900. A complainant may freeze and say nothing, but that does not equal consent.5



Download 272.28 Kb.

Share with your friends:
  1   2   3   4   5   6




The database is protected by copyright ©ininet.org 2020
send message

    Main page