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
24 Pages Posted: 16 Aug 2019
Date Written: August 13, 2019
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).
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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.
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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: Suggested Citation