“But she wasn’t resisting”…. reversing the presumption of innocence.

Tabloid reports in rape cases, often describe a man standing in the dock seeking to defend his actions stating the complainant was not resisting, or she did not say ‘no’ or ‘stop it’.

To address this the Australian state of New South Wales passed a law in November which seeks to removes all ‘elements of doubt’ in such cases. Now anyone in New South Wales who ‘plans to have sexual relations’ is required to take active steps to ensure the other person is a willing participant. This law seeks to respond to the case of Saxon Mullins who accused Luke Lazarus of sexual assault. Lazarus was acquitted because the court found he had an honest and reasonable belief that Ms Mullins was consenting.

Section 61HEE now provides: ‘an alleged offender knows there is no consent if he or she engages in sexual activity, or incites anyone to do so, in circumstances where he or she:

  • knows the alleged victim does not consent, or
  • is reckless as to whether the alleged victim consents, or
  • has no reasonable grounds to believe the alleged victim consents.’

In deciding whether there is consent, the court must consider any steps taken by the alleged offender to ascertain whether there is consent.

There can be no consent where there is:

–       a lack of capacity or cognitive ability

–       lack of opportunity to consent (i.e. unconscious, asleep or drunk)

–       use of force or terror

–       unlawful detention

–       mistaken belief

–       a position of authority and trust

The law now clarifies a failure to resist does not amount to consent. Consent must be communicated by something said and done but there will be no defence of reasonable belief – something must also have been said and done by the accused to ‘ascertain consent.’

Written by Jagdeep Hayre at BLM (jagdeep.hayre@blmlaw.com)

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