The New South Wales government’s proposed affirmative sexual consent laws contain a loophole that could allow alleged offenders to use mental ill health to escape conviction, according to a leading rape and domestic violence support service.
In a letter sent on Tuesday morning to the NSW attorney general, Mark Speakman, and other MPs, Rape and Domestic Violence Services Australia urged amendments to the laws, which are to be debated in parliament this week.
The service, which runs the NSW Rape Crisis Centre, says it consulted with other providers within the sector, as well as academics and psychologists, before preparing the letter.
The letter says the reforms are “warmly welcomed” and congratulates Speakman for his decisiveness in bringing them before parliament. The reforms were considered the best consent laws in the country by some experts when they were unveiled in May.
But the letter goes on to outline “serious concerns” that the definition of mental impairment in the laws is so broad that it will “be used as a loophole for accused persons to avoid the requirement to take steps to establish consent, which is a cornerstone element of the bill”.
The letter states that the definition of mental health and cognitive impairment in the bill is too broad, and not supported by clinical opinion, and that “substantive protections” exist within criminal law that would prevent an accused person with a serious impairment from being unfairly prosecuted.
The definition does not exist as a provision in relation to any other criminal offence in NSW, the letter states, and would allow a diagnosis of depression or anxiety to be used as a defence for failing to gain consent.
Its inclusion “sends a counterproductive message to the community by reinforcing pervasive misunderstandings about the causes of sexual violence and inadvertently [supports] violent offenders who attempt to shift the blame for their behaviour onto their mental ill health or cognitive impairment whilst undermining the experience of victim-survivors”.
Hayley Foster, chief executive of Rape and Domestic Violence Services Australia, told Guardian Australia that there had been an increase in the accused in family violence cases using mental illness to defend their behaviour, a trend which she feared would spread to rape cases should the laws pass unamended.
Foster emphasised that she believed mental health should be considered when determining culpability in criminal offences, but that the proposed bill would give offenders a strong chance of escaping conviction.
She said evidence had shown that the majority of rapists knew their victims, and committed their offences as part of a pattern of behaviour, not because they had been mentally unwell at the time of their most serious offence.
“The bill sends that message that it’s only someone who is really unwell who commits a crime like this,” Foster said.
The service consulted sexual assault support services in multiple states, Women’s Legal Services NSW, Domestic Violence NSW, and the chair of the NSW branch of the Royal Australia and New Zealand College of Psychiatrists while preparing the letter.
Foster said she had not heard directly back from Speakman but had discussed the amendments with some upper house MPs.
Speakman said in a statement to Guardian Australia that the mental and cognitive impairment exception was included in the bill to ensure that a person with an impairment is not unfairly disadvantaged by the expanded reasonable belief test. The test went beyond the threshold recommended by the Law Reform Commission.
“While I acknowledge the genuine concerns raised, the definitions of ‘cognitive impairment’ and ‘mental health impairment’ in the Crimes Act were developed by forensic mental health experts for the purposes of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020,” Speakman said.
“The government is therefore satisfied that these definitions are consistent with other, existing criminal sanctions, and provide an appropriate threshold for when criminal liability is lessened due to an impairment.
“This is not a ‘get out of jail free’ card – an offender with a cognitive impairment or mental health impairment can still be convicted if all elements of the case are established beyond reasonable doubt.”
The crimes legislation amendment (sexual consent reforms) bill passed the NSW lower house on 10 November, and will be debated in the upper house this week.
Under the bill, the accused must establish they had a cognitive or mental health impairment at the time of the alleged offence, and that the impairment was the cause of the accused not saying or doing anything to gain consent.
