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NSW Law Society and Bar Association respond to criticism over consent stance
The NSW Law Society and the NSW Bar Association have both responded to vast criticism over their submissions to the NSW Law Reform Commission’s Inquiry into consent in relation to sexual offences.
Grace Ormsby
The NSW Law Society originally delivered a succinct submission to the law reform commission, outlining their view that section 61HA does not require amendment, while the Bar Association has been attacked for writing that a person “should not be liable to conviction for sexual assault in circumstances where he or she honestly believes that there is consent.”
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NSW Law Society president Doug Humphreys has said it wasn’t surprising that “there are people that have different views to the one we have advocated,” due to the nature of the organisation and the 30,000-plus members they represent.
Defending the society’s position, he said “we haven't rejected the idea of reform, what we have said is that this is a difficult matter that needs very careful consideration because if we get rid of the defence of honest and reasonable mistake for this area alone, how are we going to deal with it in relation to other areas.
Reflecting on the need for “very good community consultation”, Mr Humphreys emphasised the topic of consent as a “tricky” area in need of “very careful attention in terms of the community that’s most likely to be affected which in fact is young, single people. They're the ones most likely to be involved in the sort of activity that might be covered by any proposed changes.”
He said that if the law reform commissioner was able to come up with specific ideas, the law society would be happy to engage with them and it’s “wrong to suggest that we’ve come to a final view when you look at our submission.”
“We haven’t been anywhere near as strong as perhaps some other submitters.”
The NSW Bar Association’s president Arthur Moses SC has also defended his association’s position on consent while acknowledging that “this is a very difficult area that involves many complex human and criminal law factors.”
The association’s submission “seeks to align sexual offences and levels of culpability that are reflected throughout the criminal law, for example, for offences such as murder and negligent manslaughter,” he said.
Mr Moses said the association sees “potential difficulties” if the communicative model of consent as it exists in Tasmania is introduced.
“It may create difficulties for both victims and accused as to what constitutes an agreement by words or actions to engage in an act. This has already proved difficult in NSW where in some cases actions have been relied on by an accused person as consent but consent has, nevertheless, been said by victims to have in fact been lacking.
He said the submission of the association “seeks to set out difficulties with the current provision and put forward proposals for the consideration of the NSW Law Reform Commission in order that the commission can consider how those difficulties may be overcome.”
Conceding that the Law Reform Commission may ultimately conclude that honest but mistaken beliefs about consent should be criminalised, Mr Moses re-affirmed the position of the association that this “should be a separate offence from that involving circumstances where the accused had knowledge of lack of consent.”
Lawyers Weekly reported last week on the submission from the NSW Bar Association, which argued that an honest belief in sexual consent should not be criminalised.
