Consent in sexual assault law: The 2007 NSW reforms

Gail Mason, James Monaghan

Sydney Law School, University of Sydney

Consent remains one of the most vexed elements of sexual assault law. Since the 1980s, legislatures in common law nations have incrementally responded to feminist concerns about the absence of a positive definition of consent and the application of a subjective test for the kind of mental state that amounts to knowledge of the absence of consent, for example, through the notorious ‘Morgan defence’. In 2007, and building on earlier reforms, changes were introduced to the NSW Crimes Act 1900 to address both of these issues. With the impetus for these reforms in mind, this presentation will present the preliminary results of a study examining the social and legal impact of these changes in NSW. It will focus on an analysis of judicial interpretations of the mental element required for sexual assault in the reported case law since 2007. It will consider the extent to which these reforms promote notions of mutuality and better protect the sexual autonomy and freedom of choice of adults in sexual activity.

Biography

Gail Mason is Professor of Criminology at the University of Sydney Law School. Gail’s research centres on crime, social justice and exclusion, particularly: racist and homophobic violence; hate crime law and punishment; and cyber racism.

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