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CONSENT will be enshrined in law for the first time under draft legislation to be proposed today by the NSW Government to protect victims of sexual assault. The new law would make it harder for people accused of sex crimes to prove the victim consented, NSW Attorney General John Hatzistergos said. Currently the concept exists only as a common law rule based on decisions in previous court cases. "Under current laws there is no requirement for verbal agreement and consent obtained after persuasion is still consent," Mr Hatzistergos said. "The Government's proposal will help lessen confusion for jurors and remove the ambiguity around a difficult issue by not merely leaving it open to the court's interpretation. "It will also lessen the anxiety felt by victims when consent is raised during trials." Those who do not have the capacity to agree to sex, including through intoxication, will not be able to legally give consent under the draft bill. The definition of lack of consent will also apply to those who have the capacity but not the freedom to give it and those with neither the capacity nor the freedom to agree to sex. Current legislation allows acquittals in some cases where the accused mistakenly believed the victim had consented, even if it seemed unreasonable, such as physical resistance. The draft bill introduces an "objective fault test" which removes that defence if the circumstances appear unreasonable. The Government will hold a two-month consultation period on the bill, which begins with the release of a discussion paper today. "Studies have found that the current definition of consent is difficult and complicated for jurors to understand," Mr Hatzistergos said. "While it's too early to say whether this measure would increase the number of convictions, defining consent in black and white ensures the courts don't transform acquiescence into consent." Mr Hatzistergos admitted the judicial system had failed rape victims for years and said the catalyst for the changes were Sydney's notorious gang rape trials. "Those cases, shocking as they were, have demonstrated to us areas where improvement can be effected," he told the Daily Telegraph today. "We need to change the laws to make it as supportive as possible." Mr Hatzistergos said he had asked the NSW Judicial Commission to put together an education package for District Court judges to teach them to get tough on defence barristers to prevent hostile questioning of victims. He also said he would call on the Court of Criminal Appeal to streamline appeals in rape cases and prevent delays. AAP (29-5-2007) |
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