Commerce report- NSW consent laws

‘To what extent has the implementation of NSW consent laws reduced sex related crimes within individuals
and groups in Society’

Introduction
Sex related crimes are a very prevalent issue in today’s society. These crimes include sexual assault, acts of
indecency, sexual servitude and so on. However, the most widespread and frequent issue is that of sexual assault.
According to the Australian Government, the most affected group from sexual assault are females, mostly in their
teenage years. However, this issue can happen to anyone at any time, whether in the work office or at school. So,
what is being done to combat this? Within NSW in particular, consent laws have been reformed as of June 1, 2022.
This was done to better provide justice for survivors of sexual assault. Consent can be defined as ‘permission for
something to happen or agreement to do something.’ This report will cover how the NSW consent laws were
reformed, What the need for new consent laws was and the impact and effect these new reforms have had on
sexual crimes

Changes to the NSW consent laws

In the past 40 years, there have been major modifications to NSW's laws regarding sexual offences. The Australian
Government has made many reforms to consent laws, which can be seen through the 1981, 1989 and 2007 Crime
amendment acts. Despite these modifications, some issues with the way the law of consent operates still exist.
Therefore, the NSW Parliament announced revisions to the rules governing sexual consent on November 23, 2021.
The NSW Attorney General requested the NSW Law Reform Commission to evaluate the state's sexual consent laws
in May 2018 and report on whether any changes were necessary to better protect victims. Over the course of three
years, the Commission held numerous consultations and received a lot of input, including approximately 200 written
submissions and more than 3,850 survey replies (NSW Government, 2022). These reforms were first proposed by the
Greens in the Lower House and then by Labor in the Upper House (Womens Agenda, n.d.). When the Crimes
Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW) went into force on June 1, 2022, several changes
took effect. The addition of communicative and affirmative agreement language to the Crimes Act 1900 is a
significant development (NSW). The revisions specifically state that it is one's responsibility to take steps to
determine whether the other person is consenting and that consent to sexual conduct must be expressed through
words or acts. The essential elements of the criminal offence of sexual assault and other sexual offences, proving
non-consent and demonstrating knowledge of non-consent, have been significantly changed to achieve this. First, it
is customary for the defence in sexual assault cases to argue that the Crown cannot establish non-consent by
pointing to evidence showing the complainant did not act in a way that would indicate non-consent, such as silence
or lack of resistance. As of right now, NSW law stipulates that proof of non-consent will be evidence that a person
did not say or do anything to indicate assent. This is a prosecution strength, not a weakness. Second, unless there is
proof that they made steps (by words and/or acts) to find out, the accused person can no longer claim that their
assumption that the other person was consenting was reasonable. Overall, these amendments aim to lower sex
related crimes and to provide justice for survivors that do fall victim to a sexual crime.

Why was it necessary for NSW's sexual consent laws to be strengthened?

The foremost reason for the reformation of the NSW consent laws in 2021 was to better provide justice for survivors
of sexual assault. Sexual offences continue to be underreported, under prosecuted, and under convicted despite
decades of legislative reform. According to estimates, 87% of women who have experienced sexual assault do not
report the incident to the police, and even less take their cases to court. The system largely fails individuals who do
this. Even if the complainant is seen to be credible and the incident is recognised as an offence, the police and
prosecution may opt not to pursue a case because they believe a conviction is doubtful. This could be for a variety of
reasons, including the belief that a judge or jury would not likely be convinced beyond a reasonable doubt. In these
circumstances, they might want to avoid subjecting the complainant to the potentially traumatic experience of
testifying in court if there won't be a conviction (NSW Government, 2020). The reforms aim to improve this problem
as in order to make sure judges, attorneys, and police are informed of and ready for the changes to consent law, the
NSW Government is collaborating with them. Included in this is the Judicial Commission of NSW, which offers judicial
personnel a continuous education and training program. A norm that requires affirmative consent prohibits the
interpretation of silence or a lack of protest as permission. This is meant to acknowledge how some individuals may
react to non-consensual sexual behaviour by freezing and being unable to verbally or physically express their
disapproval out of fear or trauma. The changes now provide judges the authority to instruct juries on this and other
"rape myth" or stereotype subjects (UNSW, 2022). The reformation of the NSW consent laws was vital due to
misunderstanding and hesitation between the court and police force, as well as clarity within the legislation.

Has the reformation of NSW consent laws improved the situation of those affected by
sexual crimes?
The new regulations could increase the depth and intimacy of sexual relationships and experiences as well as lower
incidence of sexual violence. When looking at the relational side of consent, communication is necessary for
obtaining affirmative agreement, communication demonstrates respect, and trust and respect are essential
components of sexual intimacy and connection. Sexual relationships improve through communication, honesty, and
respect. Respect for oneself and one's relationship is demonstrated by asking for and receiving consent. It gets rid of
any sense of entitlement one spouse could have towards the other. Your sexuality and your body are not someone
else's property (USF, n.d.). An individual’s safety when related to sexual acts is also protected under the new consent
reforms as the implementation of new jury instructions will improve the victim's experience with the judicial system
and the knowledge of the complexity of sexual offence and reporting among jurors by addressing misconceptions
regarding consent in trial proceedings. (NSW Government, 2022). While these new laws provide a fair trial and
healthier relationships, sexual assault is still prevalent through individuals and societies, and these laws are just one
step to achieving a reduce in sexual crimes. More steps such as societal communication and education must be
implemented so that this issue is eliminated.

Conclusion
To conclude, the implementation of NSW consent laws has reduced sexual crimes within individuals and groups in
society. This impact can be seen through a more equitable and successful prosecution of sexual offences and to
enhance the experience of victims in the legal system and perpetrators receiving up to 14 years prison time. This law
reforms also increases morals and ethics within communities, as consent is now law within these societies. Thus,
there is reduced sexual crimes and communities are a safer place. On the other hand, these law reforms do not fix
every aspect of sexual related crimes, as they are still prevalent within society. However, this problem is recognised
by the Australian government and over the past 40 years, multiple reforms have taken place, each one providing a
safer community and reduced sex related crimes.