MEN will have to be more careful about ensuring a woman is consenting to sex under new rape laws passed by State Parliament yesterday.
The changes close a legal loophole under which alleged offenders were able to escape conviction by claiming they believed a victim was consenting, or claiming that they had not thought about whether the victim was consenting.
Following the changes, even if jurors accept that an accused held such a belief, they can still hold him liable if they think he was “aware” that the complainant might not have been consenting. The changes also require a jury to find that the victim did not consent if she or he was unconscious at the time of the sexual act.
The changes were welcomed by those who work with rape survivors but criticised by the Criminal Bar Association, which said they would make trials more complicated and appeals more likely.
Attorney-General Rob Hulls said: “If you want to have sex, you have to ensure that your partner is agreeing to that sexual act. It’s not rocket science. There’s an obligation, under this legislation, to turn your mind to the issue.”
Mr Hulls said the change relating to unconsciousness addressed cases in which accused claimed they did not think about consent because the victim was asleep. “I think the laws strike the right balance . . . I want a system that encourages people to come forward about sexual crime,” he said.
The Criminal Bar Association said the changes were unnecessary because the previous regime was fair to the accused and victims. Spokesman Gerard Mullaly said the changes would mean “judges’ directions to juries will be more confusing, trials will be more complicated and appeals will be more likely to be instituted.
“We think there is a real risk that more appeals will be granted and more retrials ordered, which means that complainants will be required to go through it all again.”
The changes were welcomed by CASA Forum, which works with survivors of sex assaults. Spokeswoman Carolyn Worth said they strengthened the responsibility of men with regard to women who were affected by drugs or alcohol or who were frightened into submission.
She cited as an example a woman who has consensual sex with one man and then finds he has phoned some of his friends and told them to come over and join in. All the men might later claim they believed she consented, but the new laws would ask juries to question whether the men should have been aware that she was too frightened to resist, Ms Worth said.

First published in The Age.