According to the Australian Institute of Health and Welfare, almost 2 million Australians over the age of 15 had been sexually assaulted one or more times. Those affected by sexual assault are prone to emotional stress, psychological trauma and feelings of disconnection from daily life.
In light of recent events like Sexual Assault Awareness Month and the recent trial of Saxon Mullins’ attacker, the New South Wales Attorney General has announced a reform to previous NSW consent laws. NSW is now endorsing a new affirmative consent law.
What does affirmative consent entail?
For affirmative consent to be given, consent must be actively communicated and actively sought. Those providing and receiving consent would be encouraged to follow a ‘yes means yes’ mentality, rather than focusing on the existence or absence of a 'no.' New legislation would require a person seeking sexual intercourse to obtain a clear, expressed and active agreement before engaging in a sexual practice.
This is a win for survivors as it shifts the emphasis away from the victim’s actions and onto those of the accused.
The affirmative consent law has been at the forefront of Tasmania’s action against sexual assault for the past two decades without any controversy. However, Victoria does not require an accused person to provide any evidence to show the other party was consenting. Rather, the Victorian courts will look to the accused person’s perception of the victim’s conduct, such as whether the victim was intoxicated, wearing revealing clothing or not offering enough resistance to the sexual advances. If a perpetrator did take steps to ascertain consent, they have the right to use this as their defense.
NSW plans to eradicate these potential problems by adopting Affirmative consent laws and making consent steps mandatory. Thus, the NSW provision will provide protection to victim survivors while undertaking their fight for justice.
This does not, however, reverse the onus of proof. This means people accused of sexual assault still have the right to the presumption of innocence.
This NSW reform has been advantageous for survivors of sexual assault and provides more awareness regarding saying YES when providing consent.
If you are a victim of sexual assault and require support, there are several services you can reach out to. These include:
- National Sexual Assault Support: 1800RESPECT
- Blue Knot Foundation: 1300 657 380
- Bravehearts: 1800 272 831
If you have any questions or concerns about these reforms, or you would like to discuss a legal matter further, please do not hesitate to contact us on 8917 8700.