The professional body representing the states 2,400 barristers wants the law changed so that a person who has an unreasonable but honest belief in consent is not guilty of a crime. In the eyes of many people, that is simply a " Get out of jail free " excuse for rape.
Under New South Wales law, if a person has " no reasonable grounds " for believing there is consent they are deemed to have knowledge of lack of consent. - a key element of the offence of sexual assault.
What stirred controversy over the consent law was a lurid prosecution that concerned an 18 year girl who visited a night club and was offered a tour of the building by the son of the owner. Sex was suggested and she told the son she was a virgin, but somehow they engaged in anal sex with her on her hands and knees in an alley behind the club. The girl protested that she did not give consent.
A trial was aborted, another found a guilty verdict and the son spent time in prison, lodged an appeal and a new trial set him free. It was painfully obvious that this issue of consent needed work to set a clear set of rules to guide the machinery of law.
Jurors in New South Wales are already directed that consent involves " a conscious and voluntary agreement " which can be given verbally or expressed by actions . That can be interpreted in many ways and depends entirely on the outlook of the juror.
Both Victoria and Tasmania have changed their consent laws so that consent is absent if they do not " say or do anything that communicates " consent. That comes perilously close to requiring a written or verbal agreement between two people before sex becomes lawful.
Sex is usually a very private function between two people and it is not normally performed before an audience. Usually consent is therefore reduced to a " He said. She said " argument which relies entirely on their memories of the event.
If a woman takes off her clothes and climbs naked into bed with a partner a reasonable person would assume that sex would be the outcome, but to deliver certainty it would be wise if some sort verbal agreement was undertaken. Many would disagree on the grounds that sex is an act of passion and it would be debased if it required some sort of formal declaration to satisfy the requirements of the law.
The requirements of the law become questionable when we consider the millions of sexual couplings that take place in Australia every night of the year - and the few that end up in a courtroom somewhere having this consent issue decided.
The only way out of that quagmire is to decide individual cases on their merit. Clearly, both the partners must be in agreement for sex to be legal and if that is missing there is always recourse to the law through the courts.
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