Submission of the
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION (HREOC)

to the

NEW SOUTH WALES ATTORNEY-GENERAL’S DEPARTMENT

on the

DISCUSSION PAPER ON THE LAW OF CONSENT AND SEXUAL ASSAULT

20 July 2007


Human Rights and Equal Opportunity Commission
Level 8, 133 Castlereagh St
GPO Box 5218
Sydney NSW 2001
Ph. (02) 9284 9600


Contents

A. Summary of submission

B. An equality approach to sexual assault

C. A statutory definition of consent should be introduced

D. Unlawful detention and consent

E. Consent law should be subject to an objective fault element

F. Reforms to sexual assault laws should be accompanied by education programs



A. Summary of submission

  1. The Human Rights and Equal Opportunity Commission (HREOC) makes this submission to the New South Wales Attorney General’s Department in response to the Law of Consent and Sexual Assault Discussion Paper (the Discussion Paper) and the consultation draft of the Crimes Amendment (Consent – Sexual Assault Offences) Bill 2007 (the Consultation Draft).

  2. HREOC supports the introduction of a statutory definition of consent which reflects a ‘communicative model’ of consent.[1] HREOC also supports the law of consent including an objective fault element. HREOC believes such reforms will:

    1. Clarify the existing law of consent and correct gendered misconceptions about consent within the community which may compromise the fairness of court proceedings in sexual assault matters; and

    2. Send a clear message that sexual intercourse must be freely agreed to by both parties and that a person who seeks sexual intercourse has a responsibility to ascertain the existence of consent. HREOC submits that this will provide better protection for individuals’ sexual autonomy without jeopardising the right to a fair trial.

  3. HREOC acknowledges that the proposed reforms should be carefully scrutinised to ensure they improve the clarity of the legal concept of consent and avoid uncertainty or ambiguity.

  4. HREOC believes the reforms should be accompanied by targeted education programs. These programs should promote understanding that sexual intercourse must be freely agreed to by both parties and that a person seeking sex should take steps to ensure the other person is consenting.

B. An equality approach to sexual assault

  1. Under the Human Rights and Equal Opportunity Commission Act 1986 (Cth), HREOC’s functions include promoting understanding, acceptance and public discussion of human rights in Australia.[2] More specifically, HREOC is also responsible for promoting understanding and acceptance of, and compliance with, the Sex Discrimination Act 1984 (Cth) (the SDA).[3] One of the principle objects of the SDA is to promote recognition and acceptance within the community of the principle of the equality of men and women.[4] This principle is also set out in the Convention on the Elimination of Discrimination Against Women (CEDAW)[5] which is scheduled to the SDA.

  2. To advance the equality of women, CEDAW requires all governments ‘to take appropriate and effective measures to overcome all forms of gender-based violence’.[6] Sexual assault is an abuse of power that violates the basic human right to be free from violence.[7] The fact that sexual assault is far more likely to happen to women than men[8] reflects the broader social problem of unequal power relationships between women and men. Because sexual assault is predominantly gendered crime, failure to provide adequate protection from sexual assault may violate ‘the equal right of men and women to the enjoyment of all civil and political rights’.[9]

  3. The law of sexual assault and consent has historically reflected gendered stereotypes about what constitutes consent. While many of the gendered assumptions that have disadvantaged complainants in sexual assault cases have been overcome (for example, evidence of physical resistance is no longer required to establish non-consent[10]), the legal concept of consent can still create confusion, and, in some circumstances, facilitate gender stereotypes.

  4. HREOC believes that a shift towards a ‘communicative model’ of consent will help address these problems. A communicative model examines whether consent was free and voluntary taking into account all the relevant circumstances (including steps taken by the accused to ascertain the presence of consent).

C. A statutory definition of consent should be introduced

  1. Currently, there is no statutory definition of consent in NSW. The prosecution is required to prove that the complainant did not consent to the sexual conduct by reference to the complainant’s subjective state of mind at the time of the alleged assault. As noted in the Discussion Paper, recent case law (notably R v Mueller [2005] 62 NSWLR) has revealed confusion about the meaning of consent and a report by the Australian Institute of Criminology has suggested consent is a difficult concept for jurors to understand.[11]

  2. HREOC supports the introduction of a statutory definition of consent that reflects a ‘communicative model’ of consent which is designed to overcome the idea that passivity equals consent. This model provides greater protection for individual sexual autonomy.[12] HREOC believes such reforms:

    1. Clarify confusion about the common law concept of consent and provide a more appropriate basis for determining consent in court proceedings;

    2. Ensure the legal concept of consent reflects contemporary standards about what is and is not acceptable sexual behaviour;

    1. Send a clear message to the community that sexual intercourse must be by free agreement and that the person seeking consent has the responsibility to take steps to ascertain consent exists.

  3. The definition of ‘lack of consent’ proposed by s 61R(2) of the Consultation Draft is ‘a person does not consent to sexual intercourse if the person: (a) does not have the capacity to agree to the sexual intercourse, or (b) has the capacity but does not have the freedom to choose whether to have sexual intercourse, or (c) has the capacity and freedom but does not agree to the sexual intercourse’.

  4. While the definition of consent proposed by the Consultation Draft should be scrutinised to ensure it does not result in ambiguity or uncertainty, HREOC believes the proposed definition is an appropriate statement of a communicative model of consent. The use of the words ‘freedom’, ‘choose’ and ‘agree’ seek to reflect a shift in the way society views sexual relations by emphasising the requirement that sexual intercourse occurs by free agreement.

  5. By using the term ‘capacity’ the proposed definition of ‘lack of consent’ highlights the fact that victims of sexual assault do not always have the capacity to consent. While the term ‘capacity’ is not defined in the Crimes Act 1900 (NSW), at common law having capacity to consent to a sexual act has been understood as ‘having sufficient knowledge or understanding to comprehend the physical nature of the sexual act and to appreciate the difference between that act and an act of a different character, such as a medical examination’.[13]

  6. HREOC believes this approach to capacity contains sufficient flexibility to strike the right balance between protecting the sexual rights of persons with an intellectual disability and recognising that sometimes such persons will not have sufficient capacity, and by reason of that fact, be especially vulnerable to sexual assault.[14]

  7. A ‘communicative model of consent’ has been adopted in Victoria, Queensland, the United Kingdom and Canada and is consistent with human rights principles. In 2003, the European Court of Human Rights endorsed the jurisprudence of the International Criminal Tribunal on the former Yugoslavia that ‘consent must be given voluntarily, as a result of the person’s free will and assessed in the context of the surrounding circumstances’ (emphasis added). [15] The Court also noted that ‘the development of law and practice in [the area of rape] reflects the evolution of societies towards ‘effective equality and respect for each individual’s sexual autonomy’.[16]

D. Unlawful detention and consent

  1. HREOC supports the introduction of proposed s 61R(6) which provides that consent is vitiated where a person submits to sexual intercourse as a result of unlawful detention, as well as violent threats. However, HREOC observes that the proposed s 61R(6) may not capture all situations where a person submits to sexual intercourse as a result of the person’s circumstances as a trafficked person. Therefore, it may be appropriate to expand the list of circumstances in which consent may be vitiated to specifically include the situation where a person engages in sexual intercourse due to being trafficked.

  2. The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children supplementing the Convention on Transnational Crime (The Trafficking Protocol) defines trafficking as the recruitment, transportation, transfer, harbouring or receipt of persons:

    where the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or a position of vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another for the purpose of exploitation.[17]

  3. When this exploitation involves sexual exploitation, a consequence of trafficking can be the sexual assault of trafficking victims who are denied the freedom to choose whether to engage in sexual intercourse. A key challenge in addressing trafficking is targeting the demand for the ‘services’ of trafficked persons by highlighting the culpability of clients who knowingly or recklessly have sexual intercourse with trafficked victims. The NSW AGD may wish to consider whether the proposed laws adequately criminalise the behaviour of a person who has sexual intercourse with another person in circumstances where that person is not consenting because of their trafficked circumstances and the person seeking sexual intercourse either: (a) knew the other person was trafficked; (b) was reckless to the fact the other person was trafficked; or (c) should have, in all the circumstances of the case, taken reasonable steps to ascertain that the other person was not trafficked.

  4. HREOC believes it may be appropriate to include the circumstance where a person submits to sexual intercourse as a result of being trafficked as a factor that may vitiate consent. This reform should be accompanied by education programs that remind clients of the sex industry of their responsibility to take steps to ascertain that sexual intercourse is consensual and the person has the freedom to make that choice. This approach reflects the principle that sexual intercourse must be consensual, whether or not the person is a sex worker.

E. Consent law should be subject to an objective fault element

  1. The Consultation Draft amends the offence of sexual assault (s 61I), aggravated sexual assault (s 61J) and aggravated sexual assault in company (s 61JA) to incorporate an objective element by providing that a person who has sex with another person without the consent of the other person and ‘who has no reasonable grounds for believing that the other person consents to sexual intercourse is guilty of an offence’. The Consultation Draft also proposes that in determining whether a person has ‘reasonable grounds’ to believe another person consents to have sexual intercourse with the person:

    ... regard is to be had to all the circumstances of the case.

    • (a) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but

    • (b) not including the personal opinions, values and general social and educational development of the person.

  2. HREOC believes these reforms send two important messages:

    1. the person seeking sex has the responsibility to take steps to find out if the other person also wants to have sex; and

    2. outdated views about female sexuality (such as women wish to be overpowered) are not a defence to sexual assault.

  3. HREOC believes subjecting the common law defence to sexual assault of ‘honest but mistaken belief to an objective fault element is appropriate. The accused should not be entitled to rely on their honest but mistaken belief in consent as a defence, regardless of whether that belief was reasonable in all the circumstances. This defence does not adequately protect the autonomy of people who do not consent to sexual intercourse and may inadvertently sanction gendered stereotypes about what constitutes consent. The defence is also inconsistent with a communicative model of consent because it does not require the accused to show what steps the accused took to form the reasonable belief that consent was present.

  4. The Discussion Paper considers whether a person who is found not to have taken reasonable steps to ascertain consent to sexual intercourse, should be convicted of a separate offence with a lower maximum penalty. HREOC does not support creating a secondary, lesser offence. The offence of sexual assault is characterised by the absence of consent. No distinction is drawn between an offence where the accused knowingly had sexual intercourse without consent and an offence where the accused recklessly had sexual intercourse without consent. If the accused is taken to have the capacity to understand the concept of consent, then the accused should be taken to have the capacity to ascertain whether consent is present.

F. Reforms to sexual assault laws should be accompanied by education programs

  1. HREOC considers that if the proposed reforms are introduced they should be accompanied by targeted education programs designed to promote an understanding of a ‘communicative model of consent’ within the community and within the legal profession. This is consistent with the Committee on Elimination of Discrimination Against Women’s view that that ‘[g]ender-sensitive training of judicial and law enforcement officers and other public officials is essential for the effective implementation of the Convention.[18]


[1] For further discussion of the ‘communicative model’ of consent see The Victorian Law Reform Commission, Sexual Offences: Final Report, July 2004, 412.
[2]Human Rights and Equal Opportunity Commission Act s 11(1)(g).
[3]The Sex Discrimination Act 1984 (Cth) s 48(1)(d).
[4]The Sex Discrimination Act 1984 (Cth) s 3(d).
[5] Opened for signature 18 December 1979; entered into force for Australia 27 August 1983, [1983] ATS 9. Australia ratified CEDAW on 28 July 1983.
[6] Committee on the Elimination of Discrimination Against Women, General Recommendation 19, para 24, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at 305.
[7] The International Covenant on Civil and Political Rights (ICCPR) protects the right not to be subject to cruel, inhuman and degrading treatment (article 7). In addition, articles 2, 5, 11, 12 and 16 of the CEDAW require the States parties to act to protect women against violence of any kind occurring within the family, at the workplace or in any other area of social life.
[8]In 2005, the Australian Bureau of Statistics Personal Safety Survey estimated that 124 100 (1.6%) Australian women 18 years and over experienced sexual violence in the last year, and of those, 100 160 women (80%) experienced sexual assault compared to the 42, 300 (0.6%) of Australian men who experience sexual assault: see ABS, Personal Safety Survey, 4906.0, 2005 (reissue) .
[9] ICCPR, article 2; see also CEDAW, article 1.
[10]Crimes Act 1900 (NSW) s 61R(2)(d).
[11] Criminal Justice Sexual Offence Taskforce, Responding to sexual assault: the way forward, Attorney General’s Department of NSW, December 2005, 35.
[12] See Criminal Justice Sexual Offence Taskforce, Responding to sexual assault: the way forward, Attorney General’s Department of NSW, December 2005, CRLD Recommendation 10.
[13] See discussion in NSW Law Reform Commission, Report 80 - People with an Intellectual Disability and the Criminal Justice System, Report no. 80, 1996 citing R v Morgan [1970] VR 337 at 341-342 per Winneke CJ (with whom Little and Starke JJ agreeing) and R v Beserick (1993) 30 NSWLR 510 at 531, per Hunt CJ at CL (Finlay and Levine JJ agreeing).
[14] This was also the conclusion of the NSW Law Reform Commission, Report 80 - People with an Intellectual Disability and the Criminal Justice System, Report no. 80, 1996.
[15] [2003] ECHR 651, [163]
[16] [2003] ECHR 651, [163]
[17]United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children supplementing the Convention on Transnational Crime, opened for signature15 November 2000; entered into force, 25 December 2003; entered into force for Australia 14 October 2005 [2005] ATS 27. Australia ratified the Trafficking Protocol on 15 September 2005.

[18] Committee on the Elimination of Discrimination Against Women, General Recommendation 19, para 24, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at 305.