More than 20 leading NSW barristers have signed an open letter opposing the state bar association’s sentiments that proposed reforms to sexual consent laws would be “fundamentally misguided” and instead praised Attorney-General Mark Speakman for his efforts on making the court system easier on victim-survivors.
Under the proposed changes, Mark Speakman said that a person would have to obtain positive consent from the other party before they engage in sexual activity and, if they fail to do so, reasonable belief in consent will not be accepted in court. It would also protect the “freeze” response where victims cannot communicate consent.
While the changes have been hailed by some in the legal profession, the NSW Bar Association president Michael McHugh SC dismissed them as being “fundamentally misguided” and criticised Mr Speakman’s proposal as “likely to criminalise respectful consensual behaviours” and force people into asking before every sexual activity.
“[The reforms] appear to provide that consent to one type of sexual activity is not on its own consent to another sexual activity. In other words, every single sexual touching and act in the course of a physical liaison would need positive consent in order to avoid criminalisation,” Mr McHugh commented in a statement.
The NSW Bar took the view that the affirmative consent model would “significantly diminish the status” of the crime because sexual assault would be reduced to include negligence without adequate regard to gradations in an accused person’s culpability.
“The NSW Bar Association calls upon the government to reconsider the implications of this ill-considered proposal, which goes beyond the model recommended by the NSW Law Reform Commission in its recent report,” Mr McHugh concluded.
In response, 23 NSW barristers wrote in an open letter that they disagree with the opinions of Mr McHugh and they, like any other member of the community, “are likely to have a range of views on a controversial topic like [sexual consent]”.
“Recent years have confirmed that the current balance struck by sexual assault laws is not satisfactory. Something needs to be done. While the rights of the accused should not be lost, the interests of the victims need better protection,” they wrote.
Mr Speakman confirmed to media that consent could be construed with a facial expression, gesture or with explicit words. The prosecution would still be required to prove beyond a reasonable doubt the three elements of sexual assault for a person to be guilty, which include that the victim did not consent, that the offending party knew the victim did not consent and that the assault occurred.
The affirmative consent model has been based on similar laws in Tasmania, which the Australian Lawyers Alliance (ALA) said had “no impact on the number of victims coming forward or the rate of guilty pleas”. Mirroring the NSW Bar’s rejections, ALA said the reforms would not make a significant difference to the outcome.
The 23 barristers wrote that they believe the Attorney-General’s reforms are sound in principle but added that it would need some fine-tuning before moving forward.
“We urge all interest groups to work with the NSW government to fine tune the points of detail of the Attorney-General’s proposal rather than resist a change that is likely ultimately to bring about better outcomes for the community as a whole,” they said.
The barristers behind the open letter are:
- Margaret Allars SC, Eleven Wentworth Chambers
- Simeon Beckett, Maurice Byers Chambers
- Tom Brennan SC, 13 Wentworth Chambers
- Kristen Deards SC, Banco Chambers
- Mark Dempsey SC, 7 Wentworth Selborne Chambers
- Kate Eastman SC, New Chambers
- Steven Finch SC, Tenth Floor Chambers
- Gail Furness SC, 11 St James Hall Chambers
- Justin Gleeson SC, Banco Chambers
- Patrick Griffin SC, Seventh Floor Garfield Barwick Chambers
- Miiko Kumar, Crown Prosecutors Chambers, Sydney
- Anthony McGrath SC, Alinea Chambers
- Jane Needham, 13th Floor St James Hall
- Nicholas Owens SC, Fifth Floor St James Hall
- Elizabeth Raper SC, 5 Wentworth
- Kate Richardson SC, Banco Chambers
- Naomi Sharp SC, Sixth Floor Wentworth/Selborne Chambers
- John Sheahan QC, Banco Chambers
- Ingmar Taylor SC, Greenway Chambers
- Geoffrey Watson SC, New Chambers
- Vanessa Whittaker SC, Banco Chambers
- Neil Williams SC, Sixth Floor Wentworth/Selborne Chambers
- Tiffany Wong SC, Banco Chambers