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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Crimes Amendment (Consent--Sexual
Assault Offences) Bill 2007
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Crimes Act 1900 No 40 2
4 Repeal of Act 2
Schedule 1 Amendments 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE COUNCIL,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Parliaments
Legislative Council
2007
New South Wales
Crimes Amendment (Consent--Sexual
Assault Offences) Bill 2007
Act No , 2007
An Act to amend the Crimes Act 1900 to deal with consent in relation to sexual
assault offences.
Clause 1 Crimes Amendment (Consent--Sexual Assault Offences) Bill 2007
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Crimes Amendment (Consent--Sexual Assault Offences)
Act 2007.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Crimes Act 1900 No 40
The Crimes Act 1900 is amended as set out in Schedule 1.
4 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
Page 2
Crimes Amendment (Consent--Sexual Assault Offences) Bill 2007
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 61HA
Insert after section 61H:
61HA Consent in relation to sexual assault offences
(1) Offences to which section applies
This section applies for the purposes of the offences under
sections 61I, 61J and 61JA.
(2) Meaning of consent
A person consents to sexual intercourse if the person freely and
voluntarily agrees to the sexual intercourse.
(3) Knowledge about consent
A person who has sexual intercourse with another person without
the consent of the other person knows that the other person does
not consent to the sexual intercourse if:
(a) the person knows that the other person does not consent to
the sexual intercourse, or
(b) the person is reckless as to whether the other person
consents to the sexual intercourse, or
(c) the person has no reasonable grounds for believing that the
other person consents to the sexual intercourse.
For the purpose of making any such finding, the trier of fact must
have regard to all the circumstances of the case:
(d) including any steps taken by the person to ascertain
whether the other person consents to the sexual
intercourse, but
(e) not including any self-induced intoxication of the person.
(4) Negation of consent
A person does not consent to sexual intercourse:
(a) if the person does not have the capacity to consent to the
sexual intercourse, including because of age or cognitive
incapacity, or
(b) if the person does not have the opportunity to consent to
the sexual intercourse because the person is unconscious or
asleep, or
Page 3
Crimes Amendment (Consent--Sexual Assault Offences) Bill 2007
Schedule 1 Amendments
(c) if the person consents to the sexual intercourse because of
threats of force or terror (whether the threats are against, or
the terror is instilled in, that person or any other person), or
(d) if the person consents to the sexual intercourse because the
person is unlawfully detained.
(5) A person who consents to sexual intercourse with another person:
(a) under a mistaken belief as to the identity of the other
person, or
(b) under a mistaken belief that the other person is married to
the person, or
(c) under a mistaken belief that the sexual intercourse is for
medical or hygienic purposes (or under any other mistaken
belief about the nature of the act induced by fraudulent
means),
does not consent to the sexual intercourse. For the purposes of
subsection (3), the other person knows that the person does not
consent to sexual intercourse if the other person knows the person
consents to sexual intercourse under such a mistaken belief.
(6) The grounds on which it may be established that a person does
not consent to sexual intercourse include:
(a) if the person has sexual intercourse while substantially
intoxicated by alcohol or any drug, or
(b) if the person has sexual intercourse because of
intimidatory or coercive conduct, or other threat, that does
not involve a threat of force, or
(c) if the person has sexual intercourse because of the abuse of
a position of authority or trust.
(7) A person who does not offer actual physical resistance to sexual
intercourse is not, by reason only of that fact, to be regarded as
consenting to the sexual intercourse.
(8) This section does not limit the grounds on which it may be
established that a person does not consent to sexual intercourse.
[2] Section 61R Consent
Omit the section.
[3] Section 65A Sexual intercourse procured by intimidation, coercion and
other non-violent threats
Omit the section.
Page 4
Crimes Amendment (Consent--Sexual Assault Offences) Bill 2007
Amendments Schedule 1
[4] Schedule 11 Savings and transitional provisions
Insert at the end of the Schedule with appropriate Part and clause numbers:
Part Crimes Amendment (Consent--Sexual
Assault Offences) Act 2007
Application of amendments
An amendment made by the Crimes Amendment (Consent--
Sexual Assault Offences) Act 2007 applies only in respect of an
offence committed after the commencement of the amendment.
Review of amendments
(1) The Minister is to review the amendments made to this Act by the
Crimes Amendment (Consent--Sexual Assault Offences) Act
2007 to determine whether the policy objectives of the Crimes
Amendment (Consent--Sexual Assault Offences) Act 2007
remain valid and whether the terms of the amendments made by
that Act remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period
of 4 years from the date of commencement of section 61HA (as
inserted by the Crimes Amendment (Consent--Sexual Assault
Offences) Act 2007).
(3) A report on the outcome of the review is to be tabled in each
House of Parliament within 12 months after the end of the period
of 4 years.
Page 5
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