Ms Mullins said the report failed to make a key recommendation to change NSW law to stop an accused relying in court on a mistaken belief in consent based on reasonable grounds unless they took steps to find out if the other person was consenting to sex. This is the law in Tasmania.
"To me,what is reasonable is to take steps to ascertain whether the other person is consenting,"Ms Mullins said.
"It's really disappointing that NSW has failed to lead the way in consent law."
Ms Mullins said it was"personally insulting"the commission said a communicative model of consent already underpinned NSW law when taking steps to ensure consent was"fundamental"to this model.
A key element of the offence of sexual assault is that the offender knows the other person does not consent.
Knowledge includes having"no reasonable grounds"for a mistaken belief in consent. In NSW,a judge or jury"must"consider any steps taken to ascertain consent when deciding whether there were no reasonable grounds. Unlike in Tasmania,however,it is not mandatory for the accused to take steps.
The"no reasonable grounds"provision was a central issue in the Lazarus trial. Mr Lazarus was initially found guilty of sexual assault by a District Court jury in 2015,but the NSW Court of Criminal Appeal quashed the verdict and ordered a retrial after finding the judge misdirected the jury on this issue.