Yes! To Communication About Consent; No! To Affirmative Consent: A Reply to Anna Kerr

A. Dyer, "Yes! to Communication about Consent; No! to Affirmative Consent: A Reply to Anna Kerr", Griffith Journal of Law and Human Dignity, Vol. 7 No. 1 2019, pp17-56

Sydney Law School Research Paper No. 19/58

31 Pages Posted: 6 Sep 2019 Last revised: 24 Oct 2019

See all articles by Andrew Dyer

Andrew Dyer

The University of Sydney Law School

Date Written: September 5, 2019

Abstract

In this article, I respond to Anna Kerr's claim that there should be a conviction for sexual assault in all cases where the accused has had non-consensual sexual intercourse with a person without first asking that person for her or his permission to engage in such activity. While the law in New South Wales (NSW) should do more than it currently does to encourage communication about consent, Kerr's proposal is objectionable, partly because, by effectively turning sexual assault into an absolute liability offence, it countenances the punishment of the morally innocent. Accordingly, though many see proposals such as Kerr's as progressive, they are in fact draconian and reactionary. Various changes should be made to the law of sexual assault in NSW, but we should never allow blameless persons to be convicted of serious offences for utilitarian reasons.

Keywords: communicative consent, affirmative consent, Lazarus litigation, sexual assault law reform, New South Wales, consent and persuasion, consent and threats, consent and mistakes

JEL Classification: K10, K14, K30

Suggested Citation

Dyer, Andrew, Yes! To Communication About Consent; No! To Affirmative Consent: A Reply to Anna Kerr (September 5, 2019). A. Dyer, "Yes! to Communication about Consent; No! to Affirmative Consent: A Reply to Anna Kerr", Griffith Journal of Law and Human Dignity, Vol. 7 No. 1 2019, pp17-56; Sydney Law School Research Paper No. 19/58. Available at SSRN: https://ssrn.com/abstract=3448396

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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