" Sexual Consent " Law Change !

A proposal being considered is to enact a new law category of " negligent sexual assault " to cover situations where there is a claim that the offender thought that consent had been given.  If this finds its way onto the statute books it will be seen by some  as a " get out of jail free " form of defence.  There is the expectation that it would result in a lesser sentence than a charge of " rape ".

This is the likely outcome from a sensational court case that held public attention as its lurid details was splashed across newspaper headlines for many days.  An eighteen year old virgin on her first visit to a nightclub was taken on a tour of inspection by the son of the owner.  There was conflicting evidence about what happened next, but it is agreed that anal sex took place in a back alley with the girl on her hands and knees on the ground.   The issue of consent was so unclear that the offender was freed on appeal.

Jurors in New South Wales are directed that consent requires a conscious and  voluntary agreement which can be conveyed by words or actions .  In many cases this devolves into a " he said " -  " she said " exchange  of recollections with no independent support.  Sex is a very private matter and is not usually performed in the presence of an audience.

Under this existing law, offenders are guilty of sexual assault if they had " no reasonable grounds " for believing there was consent .  Each case is heard and decided on its merits and there is every reason to believe that only a trickle of such cases ever proceed to the stage where a complaint is made to the police and a charge is laid.

Victoria and Tasmania have adopted what is called an " affirmative consent " model that concludes that a person does not give consent unless they specifically do or say something that indicated consent. Once again, the privacy surrounding the sex act tends to nullify how this can be proved in court.

The only sure way to avoid a later complaint that consent was not given would be to insist that some form of written or recorded verbal consent was given, and this would detract from the passion that usually accompanies the event.   It seems inconceivable to imagine lovers scribbling consent notes to each other, or recording consent messages on their smartphones before getting down to the action stage.

It also brings the prospect of a brutal rapist using force and fear to make a victim provide such a legal form of consent.   The legal system is now wondering how widespread is this consent issue.  Some women's groups claim that sex without consent is a major issue that goes unreported because of the stigma and uncertainty of court action.  It is a fact that few such charges find their way into a courtroom.

This " negligent Sexual assault " option seems a thoroughly bad idea.  It tends to   diminish rape and present it as a less serious offence.  It is better that each case proceeds and is decided on its merit. Sex is an act of passion between two people.  The vast majority seem to undertake this mating ritual without recourse to a court of law.