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1 January 2008

New definition of consent in rape for NSW

Changes to the law of consent in rape come into force today. I think it is a big step forward to have consent formally defined. Some people have claimed that these changes will cause frivolous cases where women will have a change of mind after the fact. But nobody has been able to provide any evidence to support such a claim. Instead I think that the clarity of the definition will make cases easier to run.

In the latest amendment to the Crimes Amendment (Consent—Sexual Assault Offences) Act 2007 No 66 (Schedule 1 Amendments) under section 61HA(2) the "Meaning of consent A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse."

and under section 61HA(4) consent is negated if:

"(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
(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."

via Aide-mémoire

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