In a submission to the state government, the New South Wales (NSW) bar association has argued  that a person should not be convicted of sexual assault if he or she honestly believes there is consent.

Unduly complex

In its preliminary submission to the NSW Law Reform Commission, the association stated ‘review on consent in relation to sexual assault offences,’ looking specifically at s61HA of the Crimes Act 1900, is ‘unduly complex’ both with regards to the provisions dealing with consent and the provision dealing with knowledge about consent. The submission noted, a person ‘should not be liable to conviction for sexual assault in circumstances where he or she honestly believes that there is consent,’ and ‘the criminal law should not make a person guilty of sexual assault where, notwithstanding such an honest belief, the accused failed to satisfy some ‘objective’ standard.

Stupid or negligent?

The association reasons included that ‘sexual assault is a serious crime with severe maximum penalties,’ which should not be satisfied ‘by a form of negligence.’ The submission stated, ‘an accused who is so stupid or negligent as to fail to appreciate 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 indifferent as to lack of consent.’ It continued, ‘an accused who lacks the capacity of a hypothetical reasonable person (e.g. 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.’ The association argued it would be ‘unjust’ to impose the same penalty upon an offender who believed consent existed as that of an offender who knew consent didn’t exist or was indifferent to the existence of it. The submission argued for expanding restorative justice processes, in line with such expansions in New Zealand.