In May this year the government announced a review into NSW’s sexual consent laws following the high profile acquittal of Luke Lazarus. Lazarus was accused of committing sexual assault in an alleyway outside his father’s nightclub in Kings Cross. He was convicted of sexual assault and sentenced to 3 years prison but this conviction was later overturned by a judge who ruled that at the time of the encounter Lazarus had believed that the alleged victim had given ‘consent’. This case has drawn attention to the complexities of ‘consent’ and consent laws in NSW.
What is consent?
The legal definition of consent is defined in the Crimes Act 1900 Sect 61HA as:“A person ‘consents’ to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse”.
The age of consent
In NSW children under the age of 16 are not legally able to consent to any kind of sexual activity. When an adult (over the age of 16) engages in sexual behaviour with a child (under the age of 16) they are committing a serious criminal offence.
When consent cannot be given
In addition to being under the age of consent a person is deemed not to be able to consent to sex if they are:
- cognitively impaired
- asleep or unconscious
- being unlawfully detained
- being threatened or forced
There are also grounds for establishing lack of consent if the complainant was:
- substantially intoxicated by alcohol or any drug at the time
- under the care of the person they were having sex with
- coerced or intimidated into having sex
- under the mistaken belief as to the identity of the person they were having sex with
- led to believe that the sex was for medical or hygene reasons
– Knowledge of consent
If a person has sex or attempts to have sex with someone who is not consenting to the sex and they know that the person is not consenting to the sex they can be found guilty of the crime of sexual assault.
Not physically resisting a sexual encounter is not evidence of consent.
To be found guilty of sexual assault the prosecution must prove beyond reasonable doubt that:
- sexual intercourse occurred
- the victim was not consenting
- the defendant was aware at the time that the victim was not consenting
The concept of ‘consent’ in sexual assaults is complex. Sexual assault is a serious criminal offence which carries a maximum penalty of 14 years imprisonment so it is imperative that you get immediate legal advice if you have been charged with this offence.
William Vahl of North Shore Criminal Law is an Accredited Criminal Law Specialist with over 20 years experience defending people who have been charged with sexual assault. Talk to us before you talk to the police. Call (02) 9955 2298 or 0400 4464 24 (24 hour emergency service).