OBJECTIVES:

The object of this Bill is to amend Part 3 of the Crimes Act (1900) in relation to the law of consent in order to make it clear to the community and the courts what is meant by consent and to provide further protections to victims of sexual assault by extending the legislative meaning of what does or may not negate consent.

COMMENTS:

In sexual assault cases, unlike other areas of law, “no” can be open to interpretation.

The Criminal Justice Sexual Offence Taskforce (headed by then Attorney General Bob Debus) produced a report on “Responding to Sexual Assault: The Way Forward”. This report not only highlighted the need to change laws and procedures affecting the prosecution of sexual assault matters, but also the need to bring about a cultural shift in the way sexual offences are investigated and prosecuted and in the attitudes of key participants within the criminal justice system. After consultation with key stakeholders, there is a necessity for a statutory definition.

A study of 18 sexual assault trials found jurors were often bamboozled by court attempts to define consent. As there is currently no statutory definition of consent in NSW, so judges must base their decision on common law, based on the outcome of previous court cases.

The new definition sends a message that sex gained by any means other than free and voluntary agreement, is not acceptable in our modern society. If a person in unconscious, asleep or too intoxicated to resist, the law will now recognise they do not have the capacity to consent. Someone who takes advantage of a situation is committing a criminal act. I also believe that a definition of consent also serves as an educative tool about what is and what is not consent.

I support the proposed amendments to Section 61R that:

– Provide that consent will be statutorily defined as occurring when a person freely and voluntarily agrees to sexual intercourse; – Expand the list of circumstances in which consent is always negated. Currently, Section 61R provides a list of factors that negate consent, including mistake belief as to the identity of the other person, as to marriage, as to medical or hygienic purposes, or as a result of threats or terror

The list of circumstances where consent will automatically be negated will now further extend to where the complainant did not have the capacity to consent, submitted to the sexual act because the complainant was unlawfully detained, the complainant was unconscious or asleep, or the complainant submitted due to force, or fear of force, to his or her person or that of another.

– Create a list of circumstances in which consent may be negated to include where the complainant is intoxicated or affected by drugs, or the complainant submits to the sexual act due to intimidatory or coercive conduct (formerly section 65A) or other non-violent threat, or the complainant submits due to an abuse of authority or professional or other trust. – Introduce the proposed ‘objective fault test’ where a person will be taken to ‘know’ that the other person does not consent to the sexual act, not only in a situation where the person knows the other person does not consent, but also where the person is reckless as to whether the other person consents or has no reasonable grounds for believing that the other person consents to the sexual act.

However, there are two particular aspects of the Bill are matters of great concern to me:

Firstly, the statutory definition of consent to sexual intercourse; and

Secondly, the deeming of knowledge of absence of consent where the alleged offender “has no reasonable grounds for believing that the other person consents to the sexual intercourse”.

A. Definition of “consent to sexual intercourse”

The Bill defines consent in a number of provisions. The primary provision is s 61HA(2) which provides that “a person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse”. In addition, s 61HA(4)(a) provides that a person does not consent if the person “does not have the capacity to consent … including because of age or cognitive incapacity”. Reference should also be made to s 61HA(6)(a), which provides that there “may” not be consent if the person was “substantially intoxicated”.

The Attorney General, in the Second Reading Speech, advanced a number of arguments in support of these provisions. None is persuasive:

(a) The definition does not “clearly articulate what does and does not amount to consent”. The formulation “freely and voluntarily agrees” is hardly clear. Indeed, none of the three concepts in that formulation is clear.

– “freely: A Supreme Court judge has noted that the Dictionary definition of “freely” is “of one’s own accord, spontaneously; without restraint or reluctance; unreservedly, without stipulation; readily willingly”. Thus, on one interpretation, no persuasion or pressure, no matter how trivial, could be placed on another person to consent to sexual intercourse. – “voluntarily”: A Supreme Court judge has noted that the Dictionary definition of “voluntary” in relation to “a feeling, sentiment, etc” includes “… purely spontaneous in origin or character”. While the criminal law traditionally understands the concept of voluntariness as meaning an exercise of the will, it is far from clear that it has that meaning in this context. – “agrees”: the law of contract gives complex meaning to the concept of agreement and that is presumably not meant here. But how is the concept of “agreement” more precise than “consent” itself?

Equally, the concept “capacity to consent” is imprecise. What “capacities” are required for a person to be capable of consenting to sexual intercourse? As for s 61HA(6)(a), how does stating that there “may” not be consent if the person was “substantially intoxicated” assist in determining when there will not be consent? The proposed statutory definition will create great uncertainty and provide a fertile field for appeals.

(b) It is wrong to imply that the current law does not “ensure that standard directions are given to juries”. The NSW Bench Book provides assistance to trial judges in giving directions to juries about consent, without the constraints of fixed statutory definitions.

“Consent involves conscious and voluntary permission by [the complainant] to engage in sexual intercourse with the accused. It can be given verbally, or expressed by actions. Similarly, absence of consent does not have to be in words; it also may be communicated in other ways. Consent which is obtained after persuasion is still consent. However, the law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse …”

This standard direction is preferable to the Bill in a number of important respects. It makes clear that consent obtained after persuasion is still consent, at least for the purposes of the criminal law. It uses the term “permission” rather than “free agreement”. It does not suggest that intoxication necessarily means lack of consent.

(c) It is dangerous to use the criminal law for the purpose of having “an educative function for both the community and juries”. The criminal law is a very blunt and brutal instrument for influencing social behaviour. The criminal law should be reserved for behaviour that is so seriously wrong as to be deserving of criminal punishment – not behaviour that might be regarded as uncivilised or lacking respect for others. The penalties for sexual assault are very severe. While it may well be desirable to foster community attitudes of respect for sexual autonomy and mutuality in sexual relationships, criminal offences must be defined in a way that catches only conduct that is generally regarded as so culpable as to be deserving of punishment.

(d) In fact, the proposed changes to the criminal law are demeaning to women. They implicitly make assumptions about the inability of women to give consent when intoxicated or placed under pressure or offered inducements to engage in sexual intercourse.

B. Deeming knowledge of absence of consent where there are “no reasonable grounds for believing that the other person consents to the sexual intercourse”

The complexity and uncertainty arising from the proposed definition of “consent” will be only be exacerbated by the need for judicial directions in relation to the three different ways that “knowledge” of absence of consent may be proved.

However, the fundamental objection to the third alternative basis in s 61HA(3)(c) (“no reasonable grounds for believing that the other person consents”) is that it does not require any form of “guilty mind” but imposes criminal liability on the basis of negligence. An accused person should not be liable to conviction for a sexual assault in circumstances where he or she honestly believes that there is consent to sexual intercourse.

The Attorney General, in the Second Reading Speech, states that “the subjective test is outdated”. It is nothing of the sort. It is a fundamental principle of the criminal law that should be abandoned only where the case for doing so is overwhelming. There is no evidence to support the claim made by the Attorney General that there have been verdicts of not guilty where “the offender has genuine but distorted views about appropriate sexual conduct”.

Given that sexual assault is a serious crime with severe maximum penalties, reserved for behaviour that is so seriously wrong as to be deserving of such criminal punishment, the case for making this fundamental change to the law is not established. Particular reasons supporting this conclusion include:

(a) In practice, a jury that concludes that an accused had no reasonable basis for believing that the complainant had consented will, in most circumstances, then conclude that the accused did not believe that consent was present.

(b) Although there are strict liability offences with substantial penalties within the criminal law (where death or grievous bodily harm occur as a result of the offender’s conduct), these are the exception, rather than the rule.

(c) An accused who is so stupid or negligent as to fail to appreciate that 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 reckless about consent.

(d) An accused who lacks the capacity of a hypothetical reasonable person (for example, 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.

(e) It is quite wrong to make such an offender liable to the same maximum penalty as the offender who knows that consent is absent or is indifferent as to whether consent is present or not. The maximum penalty for negligently causing grievous bodily harm (2 years) is much lower than the maximum penalty for reckless infliction of grievous bodily harm (10 years).

(f) In addition, it would be quite undesirable to create a situation where, after a jury trial, the sentencing judge did not know the basis upon which the jury found the accused guilty and could proceed to sentence on a much more serious basis than that in fact determined by the jury.

Example 1

A woman goes out on a first date with a man. After they have both drunk too much, she says “yes” to sex. The next morning the man has moved on, she feels humiliated and decides to go to the police. If the law is changed as proposed, her apparent consent may not be regarded as true consent on the basis that there was no “free agreement” or because she suffered from “cognitive incapacity” (part of the new definition of “consent”) because she was drunk. As for the man, even if he believed that “yes” meant consent, that will not save him if he lacked “reasonable grounds” for believing she had the “capacity to consent”. The jury will be told that they must ignore the fact that he was drunk and judge him by the standards of a sober “reasonable person”. If that sober reasonable person would have come to the view that she, because of her drunkenness, lacked the capacity to make a free agreement, then he is guilty.

Example 2

A young man and a young woman are in a boyfriend/girlfriend relationship. The young man asks for sex but she is reluctant. After a time, he says to her that they will have to break up unless she says “yes” to sex. She says “yes” and they have sex. The next day she regrets her decision and tells her mother. Her mother calls the police. If the law is changed as proposed, her apparent consent may not be regarded as true consent on the basis that there was no “free agreement”. As for the man, even if he believed that “yes” meant consent, he will be convicted of an offence carrying a maximum penalty of 14 years imprisonment if his grounds for believing that she consented were not “reasonable” – if a “reasonable person” would have believed that her apparent consent was not “freely and voluntarily” given.

The fact remains that the vast majority of victims do not report sexual assault and that it is very hard to secure a conviction in a sexual assault case that goes to trial. Sex education in schools should be teaching “no means no”.

CONCLUSION:

However, overall this Bill is welcomed, and I commend the legislation to the House.

Friday, 30th November, 2007, 9:42 am | Articles