Review of sexual consent laws: Should the law be changed to require an “enthusiastic yes”?

In May 2018 the NSW Attorney General asked the Law Reform Commission to undertake a review of sexual consent laws to determine if the law needs to be amended.  Carolyn Simpson, the second woman ever appointed to the NSW Supreme Court has been appointed to lead the review.

The review follows the high-profile case of Luke Lazarus, who was accused of raping a woman in an alleyway behind his father’s nightclub in Kings Cross in 2013. Mr Lazarus was charged with sexual assault, and in 2015 was found guilty after trial. After a successful appeal to the NSW Court of Criminal Appeal, his matter returned to the District Court for re-trial in 2017.

At trial it was not disputed that the complainant had not consented to the sexual intercourse. The issue in the case was whether or not Mr Lazarus knew that she was not consenting. Ultimately the judge hearing the re-trial ruled that Mr Lazarus had reasonable grounds to believe that the complainant had consented to the sexual intercourse because she had not asked him to stop and “did not take any physical action to move away.” Accordingly, Mr Lazarus was acquitted.

Following the acquittal, the DPP filed a further appeal to the NSW Court of Criminal Appeal. The Court found that the trial judge failed to properly consider whether Mr Lazarus took any steps to ascertain whether the complainant was consenting, however ultimately ruled that it was not in the interests of justice to order that Mr Lazarus stand trial for a third time.


What does the law currently say?

To be found guilty of sexual assault, the jury must be satisfied beyond reasonable doubt that:

  1. the accused had sexual intercourse with the victim
  2. that sexual intercourse occurred without the victim’s consent
  3. the accused either knew that the victim was not consenting to the sexual intercourse, or was reckless as to whether or not the victim was consenting.


What will the review be looking at?

The review will be focusing on the legal concepts of consent and knowledge of consent.

In NSW, the law currently states that a person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.  Knowledge of consent has a broad definition which includes actual knowledge, recklessness, or having ‘no reasonable grounds for believing’ that there was no consent.

It is understood that the review will be looking at other jurisdictions including Tasmania and Victoria. In Tasmania, a person does not consent if they do not ‘say or do anything to communicate consent’. In Victoria, a person does not consent if they do not ‘say or do anything to indicate consent’. In other words, in both Tasmania and Victoria, positive consent is required.

What do you think?  Should the law should be changed to require an “enthusiastic yes”?