Sexual Assault Law Reform in New South Wales: Why the Lazarus Litigation Demonstrates No Need for s 61HE of the Crimes Act to Be Changed (Except in One Minor Respect)

This article argues that Parliament should make only one, relatively minor, change to s 61HE of the Crimes Act 1900 (NSW) because of the recent Lazarus litigation. If a provision such as s 2A(2)(a) of the Criminal Code Act 1924 (Tas) were inserted into s 61HE, nothing much would be achieved apart from, perhaps, jury distraction. Nor is an "affirmative consent" provision desirable. Any such provision would remove by stealth the s 61HE(3)(c) honest and reasonable mistake of fact " defence."Moreover, a reasonable person standard should not replace the current " reasonable grounds" test in s 61HE(3)(c). While Judge Tupman's decision to acquit Mr Lazarus was undoubtedly unpopular with the press and public, it would be a mistake for Parliament significantly to reform the law in response to populist excitement. It should, however, reverse the New South Wales Court of Criminal Appeal's interpretation of what is now s 61HE(4)(a).