Detailed reforms of NSW sex consent laws to be revealed

Six months after the Law Reform Commission finished its detailed review of sexual assault consent laws, the NSW Government is ready to respond.

Consent laws in NSW will be finally overhauled, with a ­detailed plan to be unveiled this week.

The Sunday Telegraph can reveal Attorney-General Mark Speakman is scheduled to put forward his blueprint to cabinet when it meets on Monday afternoon and ahead of state parliament resuming in June.

The government’s response to the Law Reform Commission’s (LRC) review of sexual assault consent laws has been highly anticipated, especially by advocates who have pushed for NSW to adopt an affirmative consent model.

It is understood the reforms could be announced publicly as early as Tuesday.

The LRC recommended the laws be amended to reflect that a person does not consent if they don’t communicate, through words or actions, that consent.

It stopped short of recommending an affirmative consent model – like in Tasmania – where a defendant must show what reasonable steps they took to obtain consent.

It will fall to the Berejiklian Government as to whether it follows the LRC’s draft bill or pushes it further.

Attorney-General Mark Speakman is scheduled to reveal consent law reform next week. Pic: AAP Image/Joel Carrett

The Sunday Telegraph, partnered with Rape and Sexual Assault Research and Advocacy (RASARA), has been pushing for sexual violence reforms as part of it’s campaign, A Matter of Respect.

The campaign calls for an affirmative consent model, a pilot of specialist sexual assault courts and audit of sex education in schools.

The complexities around consent, and the barriers it presents to victims seeking justice, has been at the centre of public debate in recent months.

Rape laws were tweaked in 2008, including to define consent in legislation, in a bid to shift community perceptions around how victims responded to sex assault.

But Tony Trichter, who was the commander of NSW Police Prosecutions until 2018, said recent experience revealed those reforms didn’t go far enough.

“I think the law has not quite kept pace with recently changing societal views about what is acceptable in sexual encounters,” the retired chief superintendent said.

Rape and Sexual Assault Research and Advocacy (RASARA) directors Rachael Burgin, Saxon Mullins and Katrina Marson. Pic: Tim Hunter.

“There needs to be stronger messages both in the legislation and in the trial judge’s directions about what consent means.

“And how consent actually needs to be communicated in the circumstances of a sexual encounter.”

That includes that there was an indication, which played on the accused’s mind, that there was willingness to participate.

Describing a victim’s path through the justice system as very difficult, Mr Trichter, now a law adjunct professor, also supported specialised sexual assault courts with appointed judges and prosecutors.

“It’s one further factor in ensuring that the stereotypes and long held beliefs don’t become perpetuated during the course of criminal trials in sexual assault matters,” he said.

“There are many subtleties that need to be very well understood.

“That comes from the right kind of demeanour, the right mode of communication and a lot of experience in conducting sexual assault cases.

Former NSW Police prosecutor Tony Trichter said consent laws need to be modernised. Pic: Tim Hunter.

“It’s not as simple as training a person up. It’s not as simple as having the best lawyer or prosecutor or even the best judge.

“It’s about having those that understand those intricate factors the very best.”

In 2015, NSW introduced a child sexual offences evidence program, with specialist judges and pre recording of victims’ evidence.

While there would be financial obstacles, Mr Trichter suggested pre recording a victim’s evidence-in-chief in adult rape trials.

“I would very much like to see a specialist sexual assault court where the case is effectively split,” he said.

“The victims give their evidence in a courtroom at the first available opportunity.

“I would imagine that is something that would not be palatable in the eyes of defence lawyers, law society, bar association and so forth for a range of reasons.

“But there would be a release of that trauma of waiting a long time to give evidence and memory and detail would not run the risk of being lost to the extent it would when the victim has to wait a very long time to give evidence.”