On 1 June 2022, the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW) (Act) came into effect, implementing changes to the Crimes Act 1900 (NSW) (Crimes Act) in relation to certain sexual activities that are sexual offences, in the absence of consent.
The reforms aim to strengthen NSW laws surrounding sexual consent, as part of the NSW Government’s commitment to improving responses to sexual assault and sexual harassment by emphasising the need for affirmative consent and broaden the type of sexual conduct which is criminal. These reforms were made in the context of the Coalition of Australian Governments’ 2019 endorsement of a plan to prevent sexual harassment and sexual violence before it happens through national initiatives to promote informed consent.
Employers should be aware that, as a result of these changes there is a greater risk of criminal liability for the perpetrator of sexual conduct without consent in NSW, which increases employers’ responsibility to act appropriately in relation to the perpetrator’s employment if the conduct occurred in the course of employment. Employers will also need to ensure they comply with their obligations under the Crimes Act to report certain sexual conduct in relation to a wider range of conduct. It is also worth noting that acts other than sexual assault, such as indecent exposure, stalking and obscene or threatening communications, may be offences under criminal law and in some circumstances must be referred to Police.
The amendments in the Act include the following:
*The Act amends the Crimes Act so that ‘sexual activity’ means sexual intercourse, sexual touching, or a sexual act for the purpose of the amendments referred to above. A ‘sexual act’ means an act other than sexual touching, carried out in circumstances where a reasonable person would consider the act to be sexual. Factors to be considered include:
The Act also effectively places the onus on the accused person to take steps to identify consent ‘within a reasonable time’ before or at the time of the sexual activity, except for very limited circumstances relating to mental or cognitive impairment of the accused.
Although it remains to be seen what impact these new laws will have on a workplace sexual harassment claim, it is likely to expand the type of conduct that will be found to constitute sexual harassment and employers should ensure that conduct which could constitute a criminal offence in NSW is dealt with appropriately given the seriousness of the offence.
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