Sexual Assault Law Reform in New South Wales: Why the Lazarus Litigation Demonstrates No Need for s 61HE of the Crimes Act to be Changed (Except in One Minor Respect)

A. Dyer, "Sexual Assault Law Reform in New South Wales: Why the Lazarus Litigation Demonstrates No Need for s 61HE of the Crimes Act to be Changed (Except in One Minor Respect)", Criminal Law Journal, 43, 2019, pp.78 - 100

Sydney Law School Research Paper No. 19/50

24 Pages Posted: 16 Aug 2019

See all articles by Andrew Dyer

Andrew Dyer

The University of Sydney Law School

Date Written: August 13, 2019

Abstract

This article  argues that Parliament should make only one, relatively minor, change to s  61HE of the Crimes Act 1900 (NSW) because of the recent Lazarus litigation. If a provision such as s 2A(2)(a) of the Criminal Code Act 1924 (Tas) were inserted into s  61HE, nothing much would be achieved – apart from, perhaps, jury distraction. Nor is an “affirmative consent” provision desirable. Any such provision would remove by stealth the s  61HE(3)(c) honest and reasonable mistake of fact “defence.” Moreover, a reasonable person standard should not replace the current “reasonable grounds” test in s 61HE(3)(c). While Judge Tupman’s decision to acquit Mr Lazarus was undoubtedly unpopular with the press and public, it would be a mistake for Parliament significantly to reform the law in response to populist excitement. It should, however, reverse the New South Wales Court of Criminal Appeal’s interpretation of what is now s 61HE(4)(a).

Note: This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039. legal.thomsonreuters.com.au

This article was first published by Thomson Reuters in the Criminal Law Journal and should be cited as A. Dyer, Sexual Assault Law Reform in New South Wales: Why the Lazarus Litigation Demonstrates No Need for s 61HE of the Crimes Act to Be Changed (Except in One Minor Respect), (2019), 43, Crim LJ, 78.

For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at legal.thomsonreuters.com.au/search.

The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe‐or‐purchase.

Keywords: sexual assault law reform, New South Wales, R v Lazarus, Criminal Code 1924 (Tas) s 2A(2)(a), affirmative consent, reasonable belief, reasonable grounds for belief, 'steps' to ascertain consent

JEL Classification: K10, K14, K30

Suggested Citation

Dyer, Andrew, Sexual Assault Law Reform in New South Wales: Why the Lazarus Litigation Demonstrates No Need for s 61HE of the Crimes Act to be Changed (Except in One Minor Respect) (August 13, 2019). A. Dyer, "Sexual Assault Law Reform in New South Wales: Why the Lazarus Litigation Demonstrates No Need for s 61HE of the Crimes Act to be Changed (Except in One Minor Respect)", Criminal Law Journal, 43, 2019, pp.78 - 100; Sydney Law School Research Paper No. 19/50. Available at SSRN: https://ssrn.com/abstract=3432850

Andrew Dyer (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Register to save articles to
your library

Register

Paper statistics

Downloads
163
Abstract Views
484
rank
186,542
PlumX Metrics