|Especially since the Hon. Helen Westwood said at the time, discussing the bill:|
The Bar Association claims, firstly, that the new sexual assault law will criminalise consensual sexual intercourse if the parties were drunk. The bill does not do that. The current state of sexual assault law, which has been well settled for many years, is that if someone has become so intoxicated that he or she does not have the capacity to say yes or no to sex, no consent can be given, and having sex with someone in those circumstances is rape.
That is quite different from the situation where people have something to drink, lose their inhibitions and have sex. The law recognises that just because people get drunk does not mean that they lose their capacity to make decisions and give, or refuse to give, their consent.
Further, this bill - the Crimes Amendment (Consent—Sexual Assault Offences) Bill 2007 - was passed by both houses - this being, as I understand it, the bill that the Bar Association protested in exactly the words you quoted in the Head Shop. In this bill, it was said:
The grounds on which it may be established that a person does not consent to sexual intercourse include:
(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or
(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or
(c) if the person has sexual intercourse because of the abuse of
a position of authority or trust.
So, when you said The proposed bill was defeated in November 2007 but it goes to show how delicate an issue this really is.- what exactly did you mean? As far as my understanding of New South Wales law goes, which is not very far, being passed by the Council and Assembly, and assented by Parliament would mean the amendment would go through, although once the amendments it made to the Crime Act 1900 were made the act itself would be repealed -is that how it works? So, if we are talking about the same bill, I am confused, especially since in that bill the phrase "consent cannot be said to have been lawfully obtained if at the time of that consent the victim was intoxicated" does not occur.