On 1 June 2022, significant changes to sexual assault laws came into effect in NSW. These changes come as a result of a review by the NSW Law Reform Commission following the trial of Luke Lazarus. Mr Lazarus was convicted, and then subsequently acquitted, of sexual assault in relation to an incident outside of a Kings Cross nightclub. The appeals in relation to this matter brought into question the definition of consent and how the courts determine consent in sexual assault trials.
There are two major components of the legislative amendments: the definition of consent and knowledge as to consent.
Consent is defined in section 61HI. While there has been no change to the core definition of consent as freely and voluntarily agreeing to sexual activity, the new definition does specify that consent must be present at the time of the sexual activity. Sexual activity is defined at s 61HH to mean sexual intercourse, sexual touching or a sexual act. Consent can be communicated by words or actions including reciprocating body language or affirming remarks throughout a sexual encounter.
There is no requirement to seek and obtain consent in every small increment along the continuum but consent must be present at all times during the encounter.
One of the overarching purposes of the new legislation is to recognise that consent to one sexual activity is not consent to all or even any other sexual activity. Consent can be regarded as a continuum – a person can consent to and maintain that consent to a range of sexual activity, including consent from the outset to multiple forms of sexual activity. Consent to engage in sexual activity with a person on one occasion is not taken to be consent to that person on another occasion or another person on that or another occasion. Different acts along a sexual continuum require consent.
Consent can be withdrawn by words and conduct at any time and any sexual activity that continues after consent has been withdrawn is non-consensual. The lack of verbal or physical resistance alone is not consent.
The legislative changes detail a non-exhaustive list of circumstances in which there will be no consent (s 61HJ(2)) including when a complainant does not say or do anything, has no capacity to consent, is affected by drugs or alcohol, is unconscious or asleep, has been harmed or is in fear of being harmed, as a result of abuse of authority or as a result of mistake or fraud.
There has been no substantive change to the legislation in respect of whether an accused has actual knowledge or is reckless as to whether or not the other person consented. The major change to the legislation relates to what historically was the third ground namely: “reasonable grounds”.
Previously contained in s 61HE, an accused knows there is no consent if s/he had no reasonable grounds for believing that the alleged victim consented to the sexual activity.
This is a hybrid subjective/objective test. It was for the trier of fact to determine what was in the accused’s mind at the time of the sexual activity taking into account factual circumstances and community standards of what is reasonable in those circumstances. The objective test operated to guard against “circumstances in which an accused may have a distorted or outdated view or belief about appropriate sexual conduct and how consent operates” by today’s community standards.
Now in s 61HK, the third ground remains a hybrid consideration but is framed as a reasonable belief test namely:
any belief that the accused person has, or may have, that the other person consents to the sexual activity is not reasonable in the circumstances.
The rationale behind this change relates to commentary of Fullerton J in the case of Lazarus referred to above. Her Honour observed that:
“In many… contested cases, perhaps all, there might be a reasonable possibility of the existence of reasonable grounds for believing (mistakenly) that the complainant consented and other reasonable grounds suggesting otherwise.”
This commentary raised concern that that an interpretation could be that any one reasonable ground of belief could be enough to ground an acquittal even when other evidence may suggest that the accused’s mistake was not reasonable.
The amended legislation focusses on the reasonableness of any belief that an accused has or may have in light of all of the relevant circumstances as opposed to focussing on whether there is one ground (or more) on which the accused based their belief that there was consent.
The trier of fact must still be satisfied that subjectively, at the time of the sexual act the accused believed there was free and voluntary consent and that belief was objectively reasonable in the circumstances.
The inclusion of sub-section (2) also denotes that a belief that the other person consents to sexual activity is not reasonable if the accused person did not, within a reasonable time before or at the time of engaging in sexual activity, say or do anything to find out whether the other person consents. This is perhaps one of the major changes to the law surrounding sexual assault in NSW.
In determining the mental element of knowledge of non- consent, the trier of fact must consider all the circumstances of the case including what, if anything, the accused said or did. As with the previous legislation, it remains impermissible to consider any self-induced intoxication of the accused person.
If an accused person knows that the sexual activity occurred under any of the circumstances outlined in s 61HJ, the accused person by definition knows that there was no consent.
When the defence of mistaken belief is raised, it is still for the prosecution to prove beyond reasonable doubt the contrary.
If you have been charged with a sexual assault offence, it is imperative that you obtain detailed and targeted advice. Our team have decades of experience in these types of matters and we stay up to date with the changing landscape of sexual assault legislation.
Helen Christinson, Partner