Affirmative consent laws passed in NSW

Affirmative consent laws passed in NSW

24 November 2021 By Lauren Croft
Affirmative consent laws passed in NSW

In a massive step for victims of sexual assault, common sense reforms have officially passed NSW Parliament this week.

The new reforms will simplify sexual consent laws and ensure more effective prosecutions of sexual offences, in what NSW Attorney-General Mark Speakman said was “a matter of common sense and respect”.

The bill, first introduced into parliament in October, reinforces that consent is a free choice involving mutual and ongoing communication and that consent should never be presumed.

This news follows the release of the NSW Law Reform Commission (LRC) report last November, which analysed the NSW consent laws.

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The new laws, commencing in mid-2022, set clearer boundaries for consensual sex and mean that affirmative consent is now law: unless someone does or says something to communicate consent, they have not consented to sexual activity.

Furthermore, the accused person’s belief in consent will not be recognised by law unless they did or said something to establish consent. This also protects victims further by recognising the “freeze” response, whereby someone freezes and cannot communicate a lack of consent.

The LRC review was prompted by survivor and advocate Saxon Mullins, who gave up her anonymity to appear on ABC’s Four Corners in 2018 and is now the director at Rape & Sexual Assault Research & Advocacy (RASARA).

Mr Speakman said the NSW government “listened to calls for change and consulted victim-survivors and legal experts to improve our response to sexual violence”.

“I thank victim-survivors, peak bodies, frontline services, legal experts, academics, and those across the criminal justice system for their thorough and thoughtful engagement.

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“I commend particularly survivor Saxon Mullins for her extraordinary bravery in sharing her lived experience and her tireless advocacy for victim-survivors to ensure their voices were heard, all of which has contributed to the passage of these reforms,” he said.

“I acknowledge too, the positive, collaborative and constructive way in which my parliamentary colleagues across the political spectrum have engaged with this important bill.”

The reform package also includes five new jury directions to address common sexual assault misconceptions, research into victim-survivor experiences with the criminal justice process, and community awareness campaigns, as well as educational programs for judges, legal practitioners and police.

Targeted education programs for judges, legal practitioners and police will now take place, ahead of the new laws.

New reform is being seen across the country, with Victoria ushering in new sexual violence law reforms in November this year.

In addition to making it the perpetrator’s responsibility to confirm they received consent, proposed changes to the Crimes Act 1958 will also make stealthing an explicit crime. This will mean that anyone found to have removed a condom or other protection during sexual activity without the other person’s knowledge will face legal action.

“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.

“While our bill built on legislative drafting suggested as part of the NSW Law Reform Commission (LRC) Report 148, it also went further by requiring a person to do or say something to find out whether the other person consented, in order to have a reasonable belief that they in fact consented to sex,” Mr Speakman added.

“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. It’s a matter of common sense and respect.”

Affirmative consent laws passed in NSW
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