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)
39 Pages Posted: 6 Sep 2019
Date Written: September 5, 2019
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: Suggested Citation