Clearer boundaries for consensual sex have been enshrined in law after the NSW Parliament passed historic consent reforms to ensure more effective prosecutions of sexual offences.
Under the changes,a person must show they took active steps to find out if a person consented to sex before they can rely in court on a mistaken but reasonable belief in consent. The affirmative consent reforms mark a major overhaul in the state’s laws.
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NSW Attorney-General Mark Speakman said the new laws would simplify sexual consent laws in a “common sense” way,for both victim-survivors and the judicial system.
“This requirement is not onerous. It does not make consensual sex illegal. It does not stop consensual sex. It does not require a written agreement or script,or stifle spontaneity,” he said.
“Under our reforms,if you want to engage in sexual activity with someone,then you need to do or say something to find out if they want to have sex with you too. It’s that simple”.
It follows years of advocacy led by Saxon Mullins,whose own court experience triggered a landmark review of the laws.
Ms Mullins on Tuesday said she never imagined the trauma of her own experience would result in legislative reform,adding that she was thrilled with the resulting laws.
“I am massively satisfied with the end result. In a legal sense,there will now be less onus placed on the victim about their actions,what they were doing.
“The fact we are having these discussions about it does extend beyond the judicial system. The majority of assault cases do not end up going through the legal system,so the impact this has is so important.”
The new legislation will also narrow a loophole that would have allowed an accused to argue that mental ill health,including anxiety or depression,was a cause of them not actively seeking consent.
The reforms include five new directions that can be given to juries in sexual offence cases to address common sexual assault misconceptions.
CEO Rape and Domestic Violence Services Australia,Hayley Foster,said the landmark legislation was the result of decades of work by many women,but singled out the work of Ms Mullins and her organisation Rape and Sexual Assault Research and Advocacy.
“These reforms would not have been possible without the courage and conviction of Saxon,who has advocated persistently in the face of so many challenges,” she said.
A key element of the offence of sexual assault is that the offender knows the other person does not consent to sex.
Knowledge includes having “no reasonable grounds” for a mistaken belief in consent. Under the previous law in NSW,a judge or jury was required consider any steps taken to ascertain consent when deciding whether there were no reasonable grounds. Unlike in Tasmania,however,it was not mandatory in NSW for the accused to take any such steps. The new law makes those steps mandatory.