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By Stephen Lucas and co.

 

In NSW the Attorney General Mark Speakman has referred the somewhat complicated and nuanced laws around consent to the Law Reform Commission. The issues they have taken to are in relation to the provisions dealing with consent and the provision dealing with knowledge about consent.

The NSW Bar Association has argued, in a submission to the state government, that a person should not be convicted of sexual assault if he or she honestly believes there is consent.

The Bar Association argues that “The criminal law should not make a person guilty of sexual assault where, notwithstanding such an honest belief, the accused failed to satisfy some ‘objective’ standard.”

The referral follows the recent acquittal of Sydney man Luke Lazarus who was found not guilty of sexual assault of Saxon Mullins, despite a jury and two judges finding that 18-year-old Saxon Mullins had not consented to sex with him in an alleyway behind his father’s Kings Cross nightclub in 2013.

Ms Mullins was a virgin and on her first night out in the nightclub district with a friend.

Mr Lazarus was found guilty and sentenced to five years in prison in his first criminal trial, however a judge overturned that decision on the first appeal.

 

In the second appeal in November 2017, the Court of Criminal Appeal found that while the judge in the second trial erred, Mr Lazarus would not be retried because it would be unfair to put him through a third trial.

What do you think the test should be? Should the test be what an objective reasonable person would believe? Or should the test relate to the specific mental intentions of the accused?

 

It is well known that many women do not press charges following rape or serious sexual assault because of their fear of being subject to the “he said/she said” cross examination before a jury.

 

Our advice is always if you believe that you have been assaulted, you should immediately contact the police.

 

 

Below is the article for further reading https://www.lawyersweekly.com.au/politics/23686-don-t-criminalise-honest-belief-in-sexual-consent-nsw-bar