Sexual consent law reform in NSW: a nod’s as good as a wink on a blind date
In May 2021 the Attorney-General Mark Speakman announced the reform of sexual consent laws in NSW, a move which was widely anticipated following years of calls by advocates for reform of laws dealing with sexual violence offences.
Tasmania has already introduced affirmative sexual consent laws, meaning that to acquit in a criminal trial in that state, a court must be satisfied that the accused took steps to ascertain that consent.
Proposal for sexual consent phone app
The public debate to date around sexual consent laws has included a much criticised suggestion from NSW Police Commissioner Mick Fuller, for the development of a phone app for sexual consent.
This proposal was met with considerable backlash, with advocates for law reform pointing out that the black-and-white nature of a click on a phone app ignored the fact that sexual consent can be withdrawn at any moment.
Critics also argued that such an app could provide better protection for perpetrators of sexual violence than for victims, as a perpetrator could force a victim to download the app and indicate consent, which could then be used to discredit the victim’s testimony in court.
Announcement of sexual consent law reform does not equal action
Mr Speakman’s announcement of reform to sexual consent laws will of course not mean that change is imminent, for a couple of reasons.
First, there is a great deal of work between an announcement of law reform and the passage of legislation, even where a proposal is energetically carried forward. This is especially true where the subject matter is controversial.
Second, it is worth noting Mr Speakman’s own words in announcing the proposed reform, that “a person could indicate consent with words, or by giving a facial expression with a gesture”. (See ‘You can’t assume consent’: NSW announces major overhaul of rape laws, SMH, 25 May 2021.)
A nod’s as good as a wink, they say; but the comment in itself signals the size of the challenge involved in forensic analysis of this most complex of human interactions.
The genius of the common law
It has been said that in the push to “codify” the law (turning it into specific and easily read rules), the legislature can lose sight of what someone once called “the genius of the common law”.
The common law relies on skilled and experienced judges interpreting broad legislative rules in the light of the expressed purpose and intendment of the legislation; and the light shone on the issue by decided cases.
The common law is far from perfect, but broadly has served the community well over the centuries.
In my view, it is nearly impossible to write a “rule for the ages” which will produce reasonable and consistent outcomes while society is constantly changing.
Sexual consent and the burden of proof
For the moment there are many unanswered questions about the proposed reforms to sexual consent laws.
Will any change be in the nature of something which adds to the Crown’s burden of proof; or just something which an accused might raise in defence?
Will it be up to the Crown to prove an absence of affirmative consent? Or must an accused who wishes to do so raise and prove affirmative consent?
How will the changes work in practice?
While such questions remain unanswered, it is perhaps a little early for us to think that beneficial and meaningful change will result.