In its preliminary submission to the NSW Law Reform Commission “Review on consent in relation to sexual assault offences”, looking specifically at s61HA of the Crimes Act 1900, the association argued that the relevant section is “unduly complex”, both with regards to the provisions dealing with consent and the provision dealing with knowledge about consent.
It wrote a person “should not be liable to conviction for sexual assault in circumstances where he or she honestly believes that there is consent”.
“The criminal law should not make a person guilty of sexual assault where, notwithstanding such an honest belief, the accused failed to satisfy some ‘objective’ standard.”
Reasons given for this stance included that “sexual assault is a serious crime with severe maximum penalties [and] it should not be satisfied by a form of negligence”.
“An accused who is so stupid or negligent as to fail to appreciate there are good reasons to conclude that consent is absent should not be regarded as in the same league of culpability as an accused who knows that consent is absent or is indifferent as to lack of consent,” the submission continued.
“[And] an accused who lacks the capacity of a hypothetical reasonable person (e.g. an accused with a mental disability) and who mistakenly believes that consent is present should not be held to the standard of people who have full capacity.”
The association further argued that it would be “unjust” to impose the same penalty upon an offender who believed consent existed as that of an offender who knew consent didn’t exist or was indifferent to the existence of it.
A comparison was drawn between the maximum penalties for negligent manslaughter and murder (25 years and life imprisonment respectively), in positing that the existing criminal law treats the “subjectively culpable and negligent infliction of harm” separately, with vastly different criminal penalties.
“There is absolutely no justification for adopting a different approach in relation to sexual offences,” the association said.
Elsewhere, the submission argued for expanding restorative justice processes, in line with such expansions in New Zealand.
“Such processes are empowering for victims and encourage pleas of guilty,” the association said.
“They give an opportunity to the victim to tell the offender how he or she was hurt and focuses on addressing the offender’s underlying behavioural issues.”
With the deadline for preliminary submissions now past, NSW Attorney-General Mark Speakman will move to seek further community input in conjunction with a consultation paper to be released.
Jerome Doraisamy is a senior writer for Lawyers Weekly and Wellness Daily. He is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, an adjunct lecturer at The University of Western Australia and is a board director of Minds Count.