Consent in NSW Sexual Assault Cases

By Sahar Adatia and Jimmy Singh

The NSW government will shell out $200 million over the next four years to educate the public on how to defend themselves against sexual assault, and at the heart of this strategy is a focus on children and university students.

Put forward as the state’s first Sexual Assault Strategy, its purpose is to provide a framework for the prevention of sexual assault and harassment in universities and workplaces, the protection of victims, and for perpetrators to be more easily held accountable.

The long-awaited strategy will see the NSW school curriculum include content related to sexual violence and raise awareness about consent, while making it a priority to teach teenagers that when it comes to consent, silence does not mean “yes”.

Sexual Assault Cases on the Rise Amongst University Students

In the last 12 months leading to June 2016, there were more than 11,000 reported victims of sexual offences in NSW, and more than two-thirds of these victims were children under the age of 18.

At tertiary level, in August 2017, the Australian Human Rights Commission (AHRC) released a report – commissioned by Universities Australia – unveiling that one in 10 female university students had been sexually assaulted in the past two years.

The landmark report, based on a national survey of more than 30,000 university students at 39 Australian universities, found that 51% of students were sexually harassed in 2016, with 26% saying they were sexually harassed at university, or travelling to or from campus.

A further 6.9% of students reported being sexually assaulted on at least one occasion in 2015 or 2016.

The release of the AHRC report last year was part of increasing awareness of the extent of sexual assault, harassment and hazing on university campuses. Labelling its findings as “unacceptable,” the report ultimately made nine recommendations to universities and colleges with the aim of acquiring high-level commitment to prevention, response and support, as well as ongoing monitoring.

Sexual assault is a crime. When experienced at a young age, it can lead to many adverse impacts that an individual may suffer over their lifetime. In securing healing and justice, it as been crucial for these victims to be believed and supported.

A Call for Review of the Current Sexual Assault Laws

Earlier this year, the NSW Attorney General, Mark Speakman, ordered a review into the state’s consent laws following a Four Corners investigation into a sexual assault case involving Sydney man, Luke Lazarus.

Mr Lazarus, the son of a Kings Cross nightclub boss, was accused of raping Saxon Mullins, 18, in an alleyway behind the Soho nightclub in 2013.

After spending eleven months in prison, he was found not guilty on appeal. On appeal, the court found that there was insufficient evidence to exclude ‘a reasonable possibility’ that he had a ‘reasonable belief’ that she was consenting to the anal sexual intercourse.

This was in the context where the evidence revealed that she voluntarily followed him into an alleyway in circumstances where he was a stranger to her at the time- where she remained silent.

The high-profile acquittal prompted discussion around NSW sexual consent laws, throwing a spotlight on the legal and social ambiguity encompassing the subject of consent.

As the state’s consent laws remain under the spotlight, NSW Minister for Prevention of Domestic Violence and Sexual Assault, Pru Goward, has advised that the government will review current laws around consent in sexual assault trials and that this is the first priority action of the Sexual Assault Strategy.

Shifting Cultural Attitudes Around Sexual Assault and Consent

As NSW invests millions into its first sexual assault strategy, Ms Goward has stated that she wants the campaign to shift cultural attitudes around what constitutes sexual assault and to make requesting verbal consent as “second nature.”

The Minister has advised that a clear “yes” is at the core of the strategy. She wants the change to reflect that, “You must explicitly ask for permission to have sex and if it’s not an enthusiastic ‘yes’ then it’s a ‘no’.”

The strategy will be rolled out in schools from kindergarten to Year 12, with school syllabuses to ensure the inclusion of content related to the continuum of sexual violence. This means that children as young as four could be educated about the subject of sexual assault and consent.

Additionally, the government will also launch a $1 million ad campaign on sexual consent, advising young adults that if they do not receive a distinct and verbal “yes” then they should not be pushing forward.

The strategy will significantly concentrate on the prevention of sexual assault and harassment in universities and workplaces, including the protection of victims. As part of the campaign, messages such as “silence is not yes” and “no means no” will be placed on signs and beer coasters in bars and pubs to raise awareness, whilst encouraging young people to carefully think before having sex. This campaign material will also roll out on social media.

With a focus on prevention and early intervention, the Minister has stated, “We need to get that conversation in every university, every TAFE campus and every workplace.”

“The impact of sexual assault on victims is profound and long-lasting, and it requires a whole of community response if we are to reduce the number of incidents and the damage caused by this crime.”

The Minister has also suggested that unless the consent is verbalised, sex would be considered rape.

The Current Law on Sexual Assault

Any sexual offence lawyer can tell you that Sexual intercourse without consent attracts heavy penalties of up to 14 years imprisonment.

Under section 61I of the Crimes Act 1900 (NSW), you can only be guilty of sexual intercourse where:

1. You had sexual intercourse with another person; and
2. The other person didn’t consent; and
3. You knew the other person didn’t consent.

You will be not guilty, if the prosecution fails to prove any one of the above 3 elements of this offence.

Current Consent Laws

Under our criminal justice system, the accused person is not required to prove his/her innocence.

The duty to prove the crime is on the prosecution to establish it beyond reasonable doubt.

The laws on consent in NSW is reflected in section 61HE of the Crimes Act 1900 (NSW).

A person accused can only be guilty of sexual intercourse without consent in any one of the following situations under the law:

1. The accused person knew that there was no consent; or
2. The accused person was reckless as to whether there was consent. This can be established in any one of the following situations:
   1. The accused person failed to even consider whether the other person consented yet continued to have sexual intercourse where the risk of there being no consent would have been obvious to someone else if he/she had turned his/her mind to it; or
   2. The accused realised the possibility that the other person wasn’t consenting but continued with the sexual intercourse shutting a blind eye to whether there was consent.

3. Where the accused raises the defence of honestly believing that the other person consented, the accused person will be guilty if:
   1. The belief wasn’t honestly held by the accused; or
   2. There were no reasonable grounds for holding that belief.

In determining whether the accused person knew or was reckless as to whether the other person consented to the sexual intercourse, the jury can look into any steps taken by the accused person to figure out whether there was consent at the time. In considering this, the jury is not to consider whether the accused person was intoxicated at the time if he/she was intoxicated voluntarily.

How then can a jury find the accused guilty for sexual assault if the accused person denies there ever being an absence of consent or believed there was consent at the time? This is where things get more complex in a trial. A jury is allowed to make inferences from already proven evidence surrounding the allegations.

For example, if the alleged victim made no physical resistance during the sexual intercourse, this cannot on its own allow a jury to find consent was given. However, if this in combination with other compelling enough pieces of evidence consistent with the alleged victim consenting is established, the jury can conclude by way of inferences that there was consent (or that the prosecution hasn’t proven beyond reasonable doubts that the accused knew there was no consent).

Situations the Law Says the Alleged Victim is Not Considered to Have Consented

The law also says that the alleged victim is not considered to consent to sexual intercourse where:

• The alleged victim doesn’t have the capacity to consent due to age or cognitive incapacity; or
• The alleged victim was unconscious or asleep; or
• The alleged victim consented due to threats of force or terror; or
• The alleged victim consented due to being unlawfully detained; or

A person is not considered to “consent” to sexual intercourse where:

• The alleged victim consented to sexual intercourse whilst under a mistaken belief about the identity of the other person; or
• The alleged victim consented to sexual intercourse whilst under a mistaken belief that he/she is married to the other person; or
• The alleged victim consented to sexual intercourse whilst under a mistaken belief that it was for health or hygienic reasons or any other fraudulent means.

The law also considers that the alleged victim didn’t consent to sexual intercourse where:

• The alleged victim was substantially intoxicated by drugs or alcohol; or
• The alleged victim was intimidated or coerced or threatened without the use of a threat of force; or
• The alleged victim was under a position of authority or trust, and the accused abused that position.

Whilst this blog outlines the consent laws, there are occasions where false allegations are made by people. For more information on this, see when someone makes false accusations against you.

What are the Defences to Sexual Assault?

You will be not guilty of sexual assault if any one of the following defences apply to your case:

1. Honest belief defence: Where you had sexual intercourse and the other person didn’t actually consent, but you held an honest belief that he/she did consent if there were reasonable grounds for you to have held that belief. Here, the Jury must consider whether the accused belief was reasonable in the circumstances, not whether a hypothetical reasonable person would have held that belief. Here, while silence or an absence of any physical resistance to the sexual intercourse at the time doesn’t amount to consent on its own, it can be a factor among other pieces of evidence in a case to allow a jury to conclude that there was consent.
2. No sexual intercourse: There was no sexual intercourse. “sexual intercourse” is where there is sexual penetration of the genitalia. The penetration can be from a body part or object. It includes the introduction of any part of a penis into another person’s mouth, oral stimulation of the genitals which includes licking or sucking of the genitalia. Absence of any DNA evidence of the accused person isn’t determinative but a relevant factor towards innocence.
3. There was consent: Where the other person did in fact consent- this can be inferred from the evidence in the trial. A person who doesn’t actually physically resist the sexual intercourse by itself doesn’t necessarily mean there was consent. It can be a factor among other pieces of evidence in a case to allow a jury to make a finding that there was consent.
4. Duress and Necessity.

While this blog covers some important issues surrounding sexual assault and consent laws, it’s highly advisable to speak to a sexual offence assault lawyer for further questions.

We have criminal lawyers in Sydney, Parramatta, and Liverpool who provide free first consultations.

Confused about what the legal age of consent is? Read on for more details.

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