Contributed

Sex consent law changes may ‘create legal nightmare’

CHANGING NSW consent laws so that people have to ­obtain a "verbal yes" before consenting to sex could backfire and lead to innocent ­people being found guilty, legal experts warn.

And rape victims could also suffer further "victim trauma" at sexual assault trials with ­extensive scrutiny of their sexual history and how they "communicated" consent, the NSW Law Reform Commission has been told.

The State Government ordered the commission to review current consent laws in the wake of a notorious case where a young woman ­endured two trials which ­centred on the accused's knowledge of whether he knew if she agreed to sex.

Minister for Prevention of Domestic Violence and Sexual Assault Pru Goward told The Daily Telegraph last month: "If you want sex you have to ask for it and if you want that sex, you have to say yes."

Minister for Family and Community Services Pru Goward. Picture: Hollie Adams
Minister for Family and Community Services Pru Goward. Picture: Hollie Adams

But the Australian Lawyers Alliance warns making an ­"enthusiastic yes" a requirement could have "unintended consequences".

ALA NSW secretary Joshua Dale said his organisation was concerned about situations where a couple were "engaged in consensual kissing in a bedroom". He said a possible scenario would be they remove their clothing and the man, X, might place a hand on the woman, Y's breast, "without asking" or "without words of action of invitation from Y".

At a trial, even if the woman admits she did not object to being touched on the breast, the man's conduct would be unlawful because she had not done "any act or said anything to communicate her consent to the touching of her breast".

"The mere fact of Y kissing X and then removing her clothes could not be construed as consent to the touching of her breast," Mr Dale said. "Consequently this exposes X to criminal liability for ­indecent assault.

"At trial, X would allege mistake as to consent, however … X would be found guilty.

"As can be seen, X is an unintended victim of poorly designed consent laws …

He also says the review should look at successful overseas examples of "restorative justice", or conferencing processes where victims are given a greater role.

Another issue was possible extensive defence cross-examination of prosecution witnesses about their previous sexual history and how consent was communicated.

"Given the ambiguity and lack of certainty in the definition of 'consent' there is a heightened risk of extensive defence cross-examination of prosecution witnesses in relation to previous sexual history and how consent has been communicated in those instances," the Australian Lawyers Alliance submission states.

This could "ignite" pre-existing juror assumptions and "perceived stereotypes" around rape and sexual assault.

"There is the risk that such a change may have the unintended consequence of creating a more traumatising trial experience for complainants," Mr Dale said.



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