The Mens Rea for Sexual Assault, Sexual Touching and Sexual Act Offences in New South Wales: Leave it Alone (Although You Might Consider Imposing an Evidential Burden on the Accused)

A. Dyer, "The Mens Rea for Sexual Assault, Sexual Touching and Sexual Act Offences in New South Wales: Leave it Alone (Although You Might Consider Imposing an Evidential Burden on the Accused)", Australian Bar Review, 2019, (Forthcoming)

Sydney Law School Research Paper No. 19/57

39 Pages Posted: 6 Sep 2019

See all articles by Andrew Dyer

Andrew Dyer

The University of Sydney Law School

Date Written: September 5, 2019

Abstract

Following the New South Wales (NSW) government’s decision to cause the NSW Law Reform Commission (NSWLRC) to review s 61HE of the Crimes Act 1900 (NSW), various commentators have argued that Parliament should alter the mental element for the offences to which that section applies. Some have advocated the adoption of a provision that would criminalise all those who engage in non-consensual sexual activity without first obtaining from the complainant a clear indication that s/he is consenting. Others have argued that the wording of s 61HE should be tightened. By contrast, the Bar Association of NSW has argued that the mental element should be made more stringent, not less. This article opposes all of these proposals. But it also argues that an accused should be required to discharge an evidential burden before s/he is entitled to a direction about mens rea in a sexual assault, sexual touching or sexual act case.

Keywords: sexual assault law reform, New South Wales, mens rea, Luke Lazarus, negligent sexual assault, evidential burdens

JEL Classification: K10, K14, K30

Suggested Citation

Dyer, Andrew, The Mens Rea for Sexual Assault, Sexual Touching and Sexual Act Offences in New South Wales: Leave it Alone (Although You Might Consider Imposing an Evidential Burden on the Accused) (September 5, 2019). A. Dyer, "The Mens Rea for Sexual Assault, Sexual Touching and Sexual Act Offences in New South Wales: Leave it Alone (Although You Might Consider Imposing an Evidential Burden on the Accused)", Australian Bar Review, 2019, (Forthcoming); Sydney Law School Research Paper No. 19/57. Available at SSRN: https://ssrn.com/abstract=3448381

Andrew Dyer (Contact Author)

The University of Sydney Law School ( email )

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

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