Consent review – sexual offences

NSW Government announces response to consent review

Women’s Legal Service NSW welcomes the NSW Government’s response to the NSW Law Reform Commission’s consent review on Tuesday 25 May 2021.

The Government supports or supports in principle all 44 recommendations in the NSW Law Reform Commission report.

The NSW Government states that key reforms include introducing legislation that:

  1. a person does not consent to sexual activity unless they said or did something to communicate consent, and
  2. an accused person’s belief in consent will not be reasonable in the circumstances unless they said or did something to ascertain consent.

“Legislating affirmative consent is very important and welcomed,” says Liz Snell, Law Reform and Policy Co-ordinator, Women’s Legal Service NSW. “We commend the advocacy of many survivors and particularly Saxon Mullins whose brave sharing of her story prompted this review and these important reforms.”

We look forward to the introduction of legislation which will also include:

  • 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
  • legislated jury directions
  • regular review of the legislation

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

“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,” says Ms Snell.

The Government has committed to improving resources available for teachers and students, to working with families and carers to develop specific resources for families and to another public education campaign building on #makenodoubt campaign.

“It is important this is part of a comprehensive primary prevention strategy,” says Ms Snell.

“We strongly support increased specialisation in responding to sexual violence – specialist police, specialist prosecutors, specialist judges, specialist support services and specialist interpreters,” says Ms Snell.

The Government has committed to “fund targeted education programs for judges, lawyers and police about changes to consent law.”

“Such education is crucial but must not be limited to the mechanics of changes to the law.  It must include an understanding of the nature and dynamics of sexual violence, including sexual violence perpetrated within a domestic and family violence and abuse context (focused on coercion, control and/or causing fear); a thorough understanding of trauma; conscious and unconscious bias; barriers to reporting sexual violence; cultural safety; disability awareness; LGBTIQA+ awareness; and vicarious trauma. We need to start from a place of believing survivors and keeping them well informed about the progress of their matter,” says Ms Snell.

“Those who have experienced sexual violence must be able to access the support they need when they need it – including access to gendered, trauma informed, culturally safe counselling and wrap around services including intensive case management. This is consistent with the National Plan to Reduce Violence Against Women and their Children,” says Ms Snell.

The NSW Law Reform Commission report: Consent in relation to sexual offences 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.

The NSW Police Commissioner, Commissioner Fuller has “already stated publicly that I have real concerns about low prosecution rates for sexual assault matters” and that “as police, our primary role is to support victims who courageously come forward to police to report sexual assault and any reforms that improves confidence in the judicial process is supported.”

We welcome this acknowledgment.

In addition to reform to consent laws, a comprehensive, evidence-based community education campaign developed by experts and increased specialisation in police response to sexual violence, we also need greater transparency and accountability of policing of sexual, domestic and family violence and abuse.

“An important way to increase transparency and accountability is through regular audits of policing of sexual, domestic and family violence and abuse which can highlight gaps in police responses and identify steps which can be taken to improve policing and ultimately, the safety of victims-survivors of such violence who are primarily children and women. It’s imperative that the community has trust in the police response. Regular audits and the publishing of the results of such audits can increase that trust because they signal that police take seriously their responsibilities and are interested to reflect and improve practices where it is required,” says Ms Snell.”

“We also need tighter case management in the prosecution of prescribed sexual offence matters to reduce delays and better processes, for example, to manage cross-examination.  All children and adult sexual assault complainants should be able to give their evidence by way of a pre-recording as occurs in the child sexual offence evidence pilot in Sydney and Newcastle and access witness intermediaries to ensure complainants and witnesses understand the questions being asked of them.  Such mechanisms reflect trauma informed practice – reducing the number of times a survivor needs to tell their story and focussing on minimising secondary trauma. This is important to ensure complainants can give their best possible evidence, which is in the interests of justice,” says Ms Snell.

The NSW Government will fund research into the experience of complainants of sexual offences within the criminal justice system.  This research will be led by the NSW Bureau of Crime Statistics and Research (BoCSaR) with oversight by a Research Advisory Group which will include NSW Government agencies, academics and representatives from victim-survivor advocacy groups.

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

The NSW Law Reform Commission’s Report 148 – Consent in relation to sexual offences, September 2020.

 

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