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NSW’s proposed sexual consent laws contain concerning mental health loophole for alleged rapists

New sexual consent laws contain one loophole that could see accused offenders escape any rape conviction.

New affirmative sexual consent laws proposed by the NSW government contain a loophole that could allow alleged sexual offenders to escape conviction using the excuse of poor mental health, according to Australia’s largest rape victim support organisation.

In a letter sent to the NSW lawyer general on Tuesday, Rape and Domestic Violence Services Australia expressed grave concerns about one key section of the proposed new laws.

Section 61HK (3) of the Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021 dictates that the requirement to obtain consent for sexual activity does not apply if the accused person had, at the time of the sexual activity, a mental health impairment.

“The specific recognition of a mental health or cognitive impairment – each broadly defined, as excuses for sexual offending sends a counter-productive message to the community,” the RDVSA letter reads.

“(The section) reinforces pervasive misunderstandings about the causes of sexual violence, and inadvertently supports violent offenders who attempt to shift the blame for their behaviour onto their mental ill health or cognitive impairment while undermining the experience of victim-survivors of sexual violence.”

RDVSA urged the NSW government to remove Section 61HK (3), highlighting that this kind of provision did not exist for any other criminal offence in NSW.

“The only relevant provision pertains to the offence of murder, where the partial defence of substantial impairment by abnormality of mind is available in some circumstances,” the letter said.

“However, this is not equivalent. In the case of murder, the impairment must be substantial so that ‘the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired’.”

Even when a person found guilty of murder meets the requirements of a defence of mental impairment, they are still charged with manslaughter and usually serve jail time in a specialist facility.

RDVSA also pointed to the lack of evidence for mental ill health being a cause of sexual assault.

“There is little evidence that mental ill health is a causal factor for sexual assault offending and again, this would be simply allowing a loophole and an excuse,” University of Melbourne rape expert Cathy Humphreys said.

“There is no need to make a particular clause in legislation for this to occur. It only encourages this mostly spurious defence.

“I would strongly advocate that a further amendment to remove this clause is considered.”

The new consent laws, which are set to be debated in the NSW upper house next week, could drastically change the way the courts understand rape in sexual assault cases.

If passed, the new laws will amend the Crimes Act will to specify that consent to sexual activity must be communicated by words or action through affirmative consent. This will rule out assumed consent as a defence against sexual assault claims.


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