As a barrister who has practised in the area of criminal law for three decades,I support some of the Law Reform Commission’s proposed changes,but I see great danger in others. I certainly support cultural change in this area,but not by criminalising behaviour that does not involve serious misconduct or deserve the imprisonment that flows from conviction.
One proposed change that is troubling is that “free and voluntary agreement to a sexual activity must exist at the time of the sexual activity”. The commission has acknowledged this means a person cannot give advance consent. So even if a person told their sexual partner that he or she wanted to be woken from sleep by some form of sexual touching,this could not be regarded as consent to that sexual activity. Does the NSW government really support that principle?
Another concerning proposal is that a person “does not” consent to a sexual activity if there are behaviours including,for example,“verbal aggression,begging and nagging,physical persistence,social pressuring,and emotional manipulation”. How many people would be at risk of prosecution after a bitter break-up on the basis that they had “begged” or “nagged” for sex? Whatever moral judgment might be made about such behaviour,does the government really support a change to the criminal law that would require it to be held that there was necessarily no consent in such circumstances?
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The commission also proposes that a person “does not” consent to a sexual activity if “participation is dishonestly procured by a false representation or upon a false pretence,known by the maker to be false when it was made”. Assume that a person says to another,falsely,“I am not married” or “I will leave my current partner” and that induces the other person to participate in sexual activity.
Such dishonesty may be morally wrong. However,it is not usually a crime to tell fibs or even blatant lies. Does the government really support the principle thatany lie told to procure sexual activity will constitute a serious criminal offence?
Yet another of the proposals is that “a person does not consent to a sexual activity if the person does not say or do anything to communicate consent”. This would mean,even if a jury is satisfied there was free and voluntary agreement to sexual activity in the mind of the complainant,it would be required to find there was noconsent because it was not actually “communicated”. Does the government really support that principle? Should an accused be convicted even if the complainant admits that he or she consented?