The Commission's Terms of Reference are
to review and report on consent and knowledge of consent in relation to sexual assault offences, as dealt with in s 61HA of the Crimes Act 1900 (NSW). In undertaking this review, the Commission should have regard to:
1. Whether s 61HA should be amended, including how the section could be simplified or modernised;
2. All relevant issues relating to the practical application of s 61HA, including the experiences of sexual assault survivors in the criminal justice system;
3. Sexual assault research and expert opinion;
4. The impact or potential impact of relevant case law and developments in law, policy and practice by the Commonwealth, in other States and Territories of Australia, and internationally, on the content and application of s 61HA; and
5. Any other matters that the NSW Law Reform Commission considers relevant.The Papaper asks the following questions -
3. The meaning of consent
Q3.1: Alternatives to a consent-based approach (1) Should the law in NSW retain a definition of sexual assault based on an absence of consent? If so, why? If not, why not? (2) If the law was to define sexual assault differently, how should this be done?
Q3.2: The meaning of consent (1) Is the NSW definition of consent clear and adequate? (2) What are the benefits, if any, of the NSW definition? (3) What problems, if any, arise from the NSW definition? (4) What are the potential benefits of adopting an affirmative consent standard? (5) What are the potential problems with adopting an affirmative consent standard? (6) If NSW was to adopt an affirmative consent standard, how should it be framed? (7) Should the NSW definition of consent recognise other aspects of consent, such as withdrawal of consent and use of contraception? If so, what should it say? (8) Do you have any other ideas about how the definition of consent should be framed?
4. Negation of consent
Q4.1: Negation of consent (1) Should NSW law continue to list circumstances that negate consent or may negate consent? If not, in what other ways should the law be framed? (2) Should the lists of circumstances that negate consent, or may negate consent, be changed? If so, how?
5. Knowledge about consent
Q5.1: Actual knowledge and recklessness (1) Should “actual knowledge” remain part of the mental element for sexual assault offences? If so, why? If not, why not? (2) Should “recklessness” remain part of the mental element for sexual assault offences? If so, why? If not, why not? (3) Should “reckless” be defined in the legislation? If so, how should it be defined? (4) Should the term “reckless” be replaced by “indifferent”? If so, why? If not, why not?
Q5.2: The “no reCasonable grounds” test (1) What are the benefits of the “no reasonable grounds” test? (2) What are the disadvantages of the “no reasonable grounds” test?
Q5.3: A “reasonable belief” test (1) Should NSW adopt a “reasonable belief” test? If so, why? If not, why not? (2) If so, what form should this take?
Q5.4: Legislative guidance on “reasonable grounds” (1) Should there be legislative guidance on what constitutes “reasonable grounds” or “reasonable belief”? If so, why? If not, why not? (2) If so, what should this include?
Q5.5: Evidence of the accused’s belief (1) Should the law require the accused to provide evidence of the “reasonableness” of their belief? If so, why? If not, why not? (2) If so, what form should this requirement take?
Q5.6: “Negligent” sexual assault Should NSW adopt a “negligent” sexual assault offence? If so, why? If not, why not?
Q5.7: “No reasonable grounds” and other forms of knowledge (1) Should a test of “no reasonable grounds” (or similar) remain part of the mental element for sexual assault offences? (2) If not, are other forms of knowledge sufficient?
Q5.8: Defining “steps” (1) Should the legislation define “steps taken to ascertain consent”? If so, why? If not, why not? (2) If so, how should “steps” be defined?
Q5.9: Steps to ascertain consent (1) Should the law require people to take steps to work out if their sexual partner consents? If so, why? If not, why not? (2) If so, what steps should the law require people to take?
Q5.10: Considering other matters (1) Should the law require a fact finder to consider other matters when making findings about the accused’s knowledge? If so, why? If not, why not? (2) If so, what should these other matters be?
Q5.11: Excluding the accused’s self-induced intoxication (1) Should a fact finder be required to exclude the accused’s self-induced intoxication from consideration when making findings about knowledge? If so, why? If not, why not? (2) Should the legislation provide detail on when the accused’s intoxication can be regarded as self-induced? If so, what details should be included?
Q5.12: Excluding other matters (1) Should the legislation direct a fact finder to exclude other matters from consideration when making findings about the accused’s knowledge? If so, what matters should be excluded? (2) Is there another way to exclude certain considerations when making findings about the accused’s knowledge? If so, what form could this take?
Q5.13: A single mental element (1) Should all three forms of knowledge be retained? If so, why? If not, why not? (2) If not, what should be the mental element for sexual assault offences?
Q5.14: Knowledge of consent under a mistaken belief Does the law regarding knowledge of consent under a mistaken belief need to be clarified? If so, how should it be clarified?
Q5.15: Other issues about the mental element Are there any other issues about the mental element of sexual assault offences that you wish to raise?
6. Issues related to s 61HA
Q6.1: Upcoming amendments (1) What are the benefits of the new s 61HE applying to other sexual offences? (2) What are the problems with the new s 61HE applying to other sexual offences? (3) Do you support applying the legislative definition of consent and the knowledge element to the new offences? If so, why? If not, why not?
Q6.2: Language and structure (1) Should changes be made to the language and/or structure of s 61HA (and the new s 61HE)? If so, what changes should be made? (2) Should the definition of “sexual intercourse” be amended? If so, how should sexual intercourse be defined?
Q6.3: Jury directions on consent Are the current jury directions on consent in the NSW Criminal Trial Courts Bench Book clear and adequate? If not, how could they be improved?
Q6.4: Jury directions on other related matters Should jury directions about consent deal with other related matters in addition to those that they currently deal with? If so, what matters should they deal with?
Q6.5: Legislated jury directions (1) Should jury directions on consent and/or other related matters be set out in NSW legislation? If so, how should these directions be expressed? (2) What are the benefits of legislated jury directions on consent and/or other related matters? (3) What are the disadvantages of legislated jury directions on consent and/or other related matters?
Question 6.6: Amendments to expert evidence law (1) Is the law on expert evidence sufficiently clear about the use of expert evidence about the behavioural responses of people who experience sexual assault? If so, why? If not, why not? (2) Should the law expressly provide for the introduction of expert evidence on the behavioural responses of people who experience sexual assault? If so, why? If not, why not?
