A review of New South Wales’s sexual assault laws has made dozens of wide-ranging recommendations but stopped short of saying a person should be required to “take reasonable steps” to ascertain if someone consents to sex.
The recommended changes do include, however, stipulating that a person does not consent if they don’t “communicate consent through words or actions”. The act of removing a condom without another person’s knowledge – known as “stealthing” – should also be made a criminal offence, the review states.
Additionally, judges would be required to tell juries that “people may respond to non-consensual sexual activity in different ways, including by freezing and not saying or doing anything” and that a person should not be judged on whether they “wore particular clothing”.
On Wednesday, the NSW law reform commission handed down a report into the state’s sexual assault laws. It will now be considered by the state government.
Lazarus was later found not guilty after an appeal and retrial when judge Robyn Tupman found he had a “genuine belief” that Mullins consented. That ruling was later overturned but the court of criminal appeal did not order another retrial because it would be oppressive and unfair to Lazarus.
Under current NSW laws, a person commits sexual assault if they know the other person is not consenting, if they are “reckless as to whether” they consent, or there are no reasonable grounds for believing there was consent.
Wednesday’s report did not suggest reforming the state’s definition of consent – “free and voluntary agreement to a sexual activity” – to include positive consent. But the commission did recommend the Crimes Act “provide that a person does not consent to a sexual activity if the person does not say or do anything to communicate consent”. This is the approach in Victoria and Tasmania.
“We consider that consent is not just a subjective state of mind or attitude … but a communicated state of mind,” the report authors said.
The legislation already states a person does not consent if they do not have capacity due to age or cognitive impairment, are unconscious or asleep, are compelled by force, unlawfully detained, or have a mistaken belief to the identity of the other person.
The commission recommended expanding the list to make clear that a person does not consent if they “do not say or do anything to communicate consent”, or are “so affected by alcohol or another drug as to be incapable of consenting”, or are “overborne by the abuse of a relationship of authority, trust or dependence” or if the person “is mistaken about the nature of the sexual activity”.
The commission rejected the argument that NSW should add a “reasonable steps” provision to the “reasonable grounds” element of knowledge.
Under the “reasonable steps” addition, a person could not successfully argue that they held a “honest and reasonable” belief that the other person consented if they did not take reasonable steps to ascertain that.
Tasmania currently has a similar law and the report authors noted it was “popular among survey responses”.
However, the commission said that the current NSW law already included a requirement to consider “any steps taken by the person to ascertain whether the other person consents” and the current law, with some adjustments, remained “preferable”.
The report also spelled out a range of new directions that a judge should make to a jury to clear up any misconceptions about consent and sexual assault laws.
A judge would be required to tell a jury that “people may respond to non-consensual sexual activity … by freezing and not saying or doing anything”.
They would also tell juries it should not be assumed a person consented “because they wore particular clothing or had a particular appearance” and that sexual assault can occur between two people who are married or in a relationship.
Juries would also be told that “trauma may affect people differently” meaning that some witnesses may not show “obvious signs of emotion or distress when giving evidence” and that this does not mean they are lying.
The law reform commission noted that in the Lazarus case, Tupman acquitted him because Mullins “did not say ‘stop’ or ‘no’” and “did not take any physical action to move away from the intercourse or attempted intercourse”.
It said that the appeal court found Tupman had “erred by failing to consider, as required … any steps taken by Mr Lazarus to ascertain whether Ms Mullins consented”.
Another recommended new section would make clear that “a person who consents to a particular sexual activity” does not automatically “consent to any other sexual activity”.
A note, written into the act, would then say: “For example, a person who consents to sexual activity using a condom is not to be taken, by reason only of that fact, to consent to sexual activity without using a condom.”
The authors of the report said this would criminalise “stealthing” but did not recommend introducing a separate section or a separate criminal offence.
New sections would separately be added to clarify that a person can withdraw consent at any time, including during sexual activity, and that a person offering no verbal resistance should not be taken to be consenting.
The NSW attorney general, Mark Speakman, said the government would “carefully consider” the report’s recommendations and respond next year.
“The present laws around consent, and the low conviction rates for sexual assault compared with other offences, may both contribute to the reluctance of victims to come forward,” he said in a statement.