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TOUGH new rape laws which make it clear being drunk does not constitute consent have been condemned by barristers, who insist: "It will turn our sons into criminals."
The NSW Bar Associations reckons the "No means no" law goes too far and will lobby Upper House members to vote against it when it is up for debate next week.
The law will define the meaning of consent for the first time, making it clear that being drunk or under the influence of drugs does not mean consent has been given.
It will also introduce an "objective fault test", meaning a man can no longer use the defence that he thought he had consent if the circumstances appear unreasonable.
"It will turn our sons into criminals," new Bar Association president Anna Katzmann SC said yesterday.
"For years women have been insisting 'No' means 'No'. What troubles us about this new legislation is that it introduces a new regime where 'Yes' may mean 'No'."
Ms Katzmann gave the example of a woman on a first date who might not want to have sex but after both she and the man had drunk too much said "Yes".
The next day she feels guilty and tells her mother, who goes to the police.
"That would be rape under the new laws," Ms Katzmann said. "The fact that he was drunk cannot be taken into account. The fact that she was drunk is no excuse for him.
Chair of the Bar Association's criminal law committee Stephen Odgers SC said the law made sexual assault a crime of negligence.
"The stupid, the negligent, the intoxicated, the crazy will be treated as if they are the same as the true rapist, who knows there is no consent to sexual intercourse," Mr Odgers said.
Opposition attorney general, former Crown prosecutor Greg Smith, said the Attorney-General John Hatzistergos needed to spell out the law better.
Mr Hatzistergos said the introduction of an objective fault test was canvassed during the State Government's exhaustive consultation process and had wide support, including police and the Rape Crisis Centre.
"Although Mr Odgers might like to draw a distinction between the stupid or drunk rapist and normal rapists, for rape victims they're categories that don't matter," he said.
"If a person is drunk it does not automatically mean that consent can't be given. What it means is that the onus is on the other person, usually a man, to show he had reasonable grounds to believe the woman had consented.
"It's difficult to take the Bar Association seriously on this matter when, in their own submission, they concluded that just because a woman was asleep or unconscious (it) doesn't negate consent."
Earlier this year The Daily Telegraph launched the Justice For Women Now campaign to give sexual assault victims equal justice and to encourage more women to report assaults.
The law will define the meaning of consent for the first time, making it clear that being drunk or under the influence of drugs does not mean consent has been given.
It will also introduce an "objective fault test", meaning a man can no longer use the defence that he thought he had consent if the circumstances appear unreasonable.
"It will turn our sons into criminals," new Bar Association president Anna Katzmann SC said yesterday.
"For years women have been insisting 'No' means 'No'. What troubles us about this new legislation is that it introduces a new regime where 'Yes' may mean 'No'."
Ms Katzmann gave the example of a woman on a first date who might not want to have sex but after both she and the man had drunk too much said "Yes".
The next day she feels guilty and tells her mother, who goes to the police.
"That would be rape under the new laws," Ms Katzmann said. "The fact that he was drunk cannot be taken into account. The fact that she was drunk is no excuse for him.
Chair of the Bar Association's criminal law committee Stephen Odgers SC said the law made sexual assault a crime of negligence.
"The stupid, the negligent, the intoxicated, the crazy will be treated as if they are the same as the true rapist, who knows there is no consent to sexual intercourse," Mr Odgers said.
Opposition attorney general, former Crown prosecutor Greg Smith, said the Attorney-General John Hatzistergos needed to spell out the law better.
Mr Hatzistergos said the introduction of an objective fault test was canvassed during the State Government's exhaustive consultation process and had wide support, including police and the Rape Crisis Centre.
"Although Mr Odgers might like to draw a distinction between the stupid or drunk rapist and normal rapists, for rape victims they're categories that don't matter," he said.
"If a person is drunk it does not automatically mean that consent can't be given. What it means is that the onus is on the other person, usually a man, to show he had reasonable grounds to believe the woman had consented.
"It's difficult to take the Bar Association seriously on this matter when, in their own submission, they concluded that just because a woman was asleep or unconscious (it) doesn't negate consent."
Earlier this year The Daily Telegraph launched the Justice For Women Now campaign to give sexual assault victims equal justice and to encourage more women to report assaults.
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