Consent review – sexual offences

Women’s Legal Service NSW welcomes the tabling of the NSW Law Reform Commission’s Consent in relation to sexual offences report in Parliament on Wednesday 18 November, 2020.

The report is available here.

The report makes over 40 recommendations.

We support clearly defining affirmative consent, introducing principles which can be drawn on for a wide evidence-based community education campaign, introducing a single list of circumstances in which there is no consent, seeking to more clearly recognise sexual violence within a domestic violence context, clarifying the knowledge provision and introducing legislated jury directions.

There is no jury direction related to domestic violence. We believe this requires further consideration, noting the high rates of sexual violence within a domestic violence context.  Such a jury direction should be developed in consultation with sexual, domestic and family violence experts.

The report recommends regular reviews of the reforms with a report to be tabled in Parliament after each review.  We recommend the first review take place 3 years after the commencement of provisions and thereafter every 3 to 5 years. This review mechanism is vital to ensure the law is operating as intended and consistent with community standards.

The report also recommends research into the experience of complainants.  We recommend a body such as Australia’s National Research Organisation for Women’s Safety (ANROWS) be commissioned by the Government to undertake such research. This research should include the examination of all sexual assault matters in the District Court over a period of time, undertaken at regular intervals. Research is also required to test the effectiveness of legislated jury directions in challenging misconceptions and rape myths. This research must be fed into ongoing statutory reviews ensuring ongoing improvements to the law.

While legislative reform is important, to make a difference and to ensure cultural change, it must be accompanied by a comprehensive, evidence-based community education campaign about the drivers of gender-based violence, respectful relationships and ethical sexual practice, developed by experts. The report recommends education about the reforms for those working within the criminal justice system as well as the broader community.

Specialisation is also key to cultural change – specialist sexual and domestic violence judges, prosecutors, support services, police and interpreters. Those who have experienced sexual violence must be able to access the support they need when they need it – for example, wrap around services including intensive case management. This is consistent with the National Plan to Reduce Violence Against Women and their Children.

A significant part of our work involves responding to women who disclose sexual violence.  This report highlights the urgent need for reform and clearly sets out the action required.

As the NSW Law Reform Commission acknowledges “this review has occurred against the backdrop of a commitment by the NSW Government to prevent, and better address, instances of sexual assault”.

The report is critical of the high attrition rates of sexual offences in NSW, that is conviction rates are very low compared to the number of people who report sexual offences to police and the number of charges laid and prosecuted.

The report notes only 8% of sexual offences reported to the NSW Police Force between July 2018 to June 2019 resulted in charges being finalised.  Further, the NSW Police Force is the only state or territory police force in Australia that does not keep data on the number of withdrawal of complaints of sexual violence at the police investigation stage.

Adopting the NSW Law Reform Commission recommendations as a matter of priority is a vital step towards meeting the Government’s commitment.  Much further action is also required.

We look forward to working with the Government on the implementation of these important reforms.

 

Read Women’s Legal Service NSW submissions to the consent review:

 

WLS NSW submission in response to the NSWLRC Draft Proposals, 18 November 2019

WLS NSW submission in response to the NSWLRC Consultation Paper, 22 February 2019

WLS NSW preliminary submission to the NSWLRC Review on consent in relation to sexual offences, 28 June 2018

 

 

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