Discussion paper on the law of consent and sexual assault (2007)
Legal
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
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
-
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). -
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:-
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 -
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.
-
-
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. -
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
-
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. -
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] -
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. -
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
-
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] -
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:-
Clarify confusion about the common law concept of consent and provide a
more appropriate basis for determining consent in court proceedings; -
Ensure the legal concept of consent reflects contemporary standards about
what is and is not acceptable sexual behaviour;
-
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.
-
-
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’. -
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. -
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] -
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] -
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
-
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. -
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] -
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. -
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
-
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.
-
-
HREOC believes these reforms send two important messages:
-
the person seeking sex has the responsibility to take steps to find out if
the other person also wants to have sex; and -
outdated views about female sexuality (such as women wish to be overpowered)
are not a defence to sexual assault.
-
-
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. -
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
-
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.