On 23 November 2021, the NSW parliament has passed the latest bill proposing amendments to sexual assault cases regarding sexual consent. The bill is titled Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021, and it includes significant of changes to Section 61 HE “Consent in relation to sexual offences” of the Crimes Act 1900 NSW.
The reform primarily focuses on clarifying definitions and terms in relation to cases of sexual assault such as the omission of “alleged offender” and “alleged victim” now to be claimed “accused person” and “complainant” respectively, and especially the omission of section 61 HE of the Crimes Act replacing it with a Subdivision 1A that expands on what constitutes consent to sexual activity, how it can be delivered, cases when consent is not present and knowledge about consent by the accused person.
The aim of these changes is to make identifying consent between the accused person and complainant clearer and easier to identify and understand in legal matters.
The reforms of the provisions within the preceding section 61 HE of the Crimes Act with regards to sexual consent concerns the key factors of:
• The ambiguous nature of the section 61 HE as to what constitutes sexual consent; reformed by Subdivision 1A by expanding the various circumstances of consent across 6 subsections.
• With regards to knowledge of consent, the reform added further provisions on the subsection on the “belief of sexual consent” placing the onus on the accused person that all steps to identifying consent must be made ‘within a reasonable time before or at the time of the sexual activity’. And on such cases where identification cannot be made/has not been present, an onus to reason this by the accused person must be made on the balance of probabilities through arguments of cognitive or mental health impairment.
• Finally, a reformed section that improves the clarification of circumstances when consent is not present, from the brief description present in Section 61 HE in comparison.
The sexual consent reform is designed to reduce ambiguity concerning the question of consent in cases of sexual assault.