Sydney lawyer says proposed sexual consent laws ’go too far’

Lawyers say proposed changes to the state’s sexual consent laws from the NSW Law Reform Commission, including making it a crime to “nag or beg” someone to have sex, go too far.

Tricking someone into having sex by lying that you are single, or want to marry them, should not be a criminal offence, a leading Sydney criminal barrister has warned.

Stephen Odgers SC, said several changes to the state’s sexual consent laws proposed by the NSW Law Reform Commission went too far — including making it a crime to “nag or beg” someone to have sex.

Barrister Stephen Odgers SC. Picture: AAP Image/Darren Pateman

The commission, which has been asked by Attorney-General Mark Speakman to review the laws, says that someone does not freely consent to sex when it is dishonestly procured by a false representation “or upon a false pretence, known by the maker to be false when it was made”.

The commission calls it a “fraudulent inducement”.

“Such dishonesty is certainly morally wrong,” Mr Odgers, general editor of the Criminal Law Journal, said.

But he writes in the current edition of the journal that if someone, for example, lies about not being married in order to have sex, it should not “make the person who made the false statement, or gave the false assurance, liable to conviction for a very serious offence”.

Mr Odgers said the commission suggests that deceits like lying about being in love or marriage intentions would unlikely be prosecuted.

“But the reach of the criminal law should not depend on the exercise of discretion by the police or a prosecutor,” he said.

A leading lawyer says lying to entice someone to have sex with you should not be illegal.

Another proposal by the commission is that a person cannot consent to sex because of coercion, blackmail or intimidation which it states is broad enough to cover conduct such as “begging and nagging, social pressuring and emotional manipulation”.

“Whatever the moral judgment that might be made about such behaviour, a jury should not be required to hold that consent is always negated by such behaviour,” Mr Odgers said.

He also raised concerns about a proposal that a person cannot give consent to sex in advance.

He said that this would mean that even if a person told their partner that they wanted to be woken up by some form of sexual touching, this would not be regarded as consent under the law.