Recently amended New South Wales consent laws to apply in Gunathilaka case

7 November 2022 11:22 pm - 40 - {{hitsCtrl.values.hits}}

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New sexual consent laws in relation to ‘Affirmative Consent’ that were passed in November 2021 and took effect in New South Wales, Australia from June this year, will be in effect as legal proceedings take place in relation to the charges of sexual intercourse without consent made against Sri Lankan cricketer Danushka Gunathilaka.

Gunathilaka who was arrested at the Sri Lanka team hotel in Sydney on Sunday, was denied bail by a Sydney Magistrate yesterday (7) and is to remain in custody. The case was adjourned to January 12, 2023, by Magistrate Robert Williams who noted that Gunathilaka had no criminal history.

The new laws which come as amendments to the Crimes Act 1900 and Criminal Procedure Act (1986), made significant changes to the definition on consent in New South Wales in relation to sexual activity and apply to offences committed on or after July 1, 2022.

As per the new law, consent is defined as ‘free and voluntary agreement to sexual activity’ and ‘free and voluntary agreement’ is based on affirmative consent which requires ‘ongoing and mutual communication’ and ‘is not to be presumed.’

The amendments make clear that an individual is not considered to have consented unless expressly said so or indicated. A person cannot consent if they do not communicate consent, are incapable of consenting due to drug or alcohol intake, are asleep or unconscious, or due to force/fear of serious harm.

Reasonable belief that consent has been given cannot be presumed under the law unless something is said or done to make certain of it.
Furthermore, consent to sexual activity can be withdrawn at any time and any sexual activity thereafter would be without consent.

Reference is also made to sexual activity using a condom, stating that such consent would not amount to consent to sexual activity without using a condom.

Gunathilaka is presently being held at a correctional facility and according to his lawyer is considering an appeal to the Supreme Court following his denial of bail.

Meanwhile, Sri Lanka Cricket (SLC) issued a media release yesterday stating that they have suspended Gunathilaka from all forms of cricket with immediate effect and will not be considered for future tours.

Gunathilaka is already serving a suspended six-month ban, handed to Gunathilaka, Kusal Mendis and Niroshan Dickwella, when they were allowed to return to international cricket earlier this year, that would come into effect if there were any disciplinary breaches against the three players over the next two years.

A more severe punishment could be imposed on Gunathilaka, with SLC yesterday saying it would penalize the player if he was found guilty.

"Sri Lanka Cricket will take the necessary steps to promptly carry out an inquiry into the alleged offense, and, upon conclusion of the aforementioned court case in Australia, steps will be taken to penalize the said player if found guilty," a statement from SLC read.

Gunathilaka was injured during Sri Lanka's first match of the ICC Men's T20 World Cup against Namibia on October 16, and was replaced in the squad by Ashen Bandara.

However, Gunathilaka was not sent back home, with the player allowed to stay with the squad.

SLC clarified this on Sunday by stating that Gunathilaka was fast recovering from his hamstring injury and therefore was considered a possible replacement player if the need arose, considering he was already acclimatized to the conditions.

(Amindha de Alwis)

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Comments - 40

Sri Tuesday, 08 November 2022 12:15 AM

So; now this law states you need to have the consent of your partner each minute you have an intercourse with your partner....It means she has right to say no at any time and she has the right to say that her partner should use a condom or not to use it ..Now; where is the consent of her partner and where is the question of equality and fairness in this ? Why this law take the side of female partner alone ..what about the feeling; emotional need and sexual desire of male partner..in the name of women right ; this law is discriminating all males? ...this does mean that male should have sexual relationship without consent but this question of consent is one-sided

Misleading Tuesday, 08 November 2022 05:51 PM

Thought my english knowledge was pretty good until I read your comment. I didn't realise that "an individual" and "a person" as synonyms referred ONLY to "she" or a female. You are the type of people who are responsible for most of the conflicts around the world by misleading unsuspecting and innocent people.

GIA LANKA Tuesday, 08 November 2022 12:43 AM

NOW SERIAL RAPIST GUNATILLEKE IS FULLY QUALIFIED TO BE BANKRUPT SHITHOLE BANANA REPUBLIC OF SRI LANKA SPORTS MINISTER, IF HE CAN MURDER

Punchi Tuesday, 08 November 2022 12:52 AM

We must get the great scion of our 2600 year old Buddhist civilisation returned to our paradise on the grounds that he have internal mechanisms to deal with this issue.

Dala Tuesday, 08 November 2022 01:15 AM

Many do these kind of thing behind the screen. Poor guy ended up in bad situation. Probably agenda was made if the SL team selected for Semis then execute this mind game against SL team.

Ram Tuesday, 08 November 2022 01:24 AM

If he is found guilty? He is already guilty for breaching the rules applicable to all team members when he left the Hotel for a night out. Can't the SLC see this and charge him for that initially. Rape charge can be dealt later

Nihal S Tuesday, 08 November 2022 01:33 AM

Corrupted Sri Lanka Cricket Board is responsible for Danushka situation. There were enough evidences of this cricketer mis-behaviour and the cricket board did not take effective actions to correct him.

Peacemaker Tuesday, 08 November 2022 01:57 AM

Lack of human rights and women’s safety with rampant crimes with no justice delivered, have led majority of SL to grow like monkeys in a remote jungle with total disregard for human rights, dignity and women’s rights

Jude Tuesday, 08 November 2022 02:10 AM

It's inevitable DG will serve time in jail for his arrogance!! Yeah!!

Dinesh Tuesday, 08 November 2022 02:12 AM

SLC is ICCs unwanted child. Blatent cheating, too lazy and too stupid to even try and cover their own fraud. This whole saga will get much, much worse once the ICC rip the scab off the dishonest festering wound that is Sri Lankan cricket. It makes the economy look healthy.

Mizaru Tuesday, 08 November 2022 02:43 AM

The news says SLC will take further action if the dude is found guilty. This is a joke. We know what happened to a man and woman who was paid a bribe was found by a UK court. The man and woman are now free as Adam and Eve. This is Sri Lanka, a land like no other. As such Australia should give the maximum punishment if the dude is found guilty.

Don Tuesday, 08 November 2022 03:26 AM

This law is applied to married couples as well. If wife said she is not in a mood to have sex, a husband cannot demand it. If he proceeds, it constitutes as a rape. Sri Lankan women would be happy to see such internationally recognized laws introduced in male dominated society. A man is not legally entitled to get pleasure from another without other’s concent.

Saman Tuesday, 08 November 2022 04:21 AM

If these laws applied in SL, majority of the male population in SL should be in prison by now.

AIA Tuesday, 08 November 2022 07:04 AM

If found guilty he will be punished under the law of the land in Australia . What is this crap story about SLC suspending him an taking action .

Ahmed Tuesday, 08 November 2022 07:09 AM

SLC is full of nincompoops and misfits. unless u allow proper administrators to govern, u will always see these types similar to SLPP pigs appearing every now

DOT Tuesday, 08 November 2022 07:10 AM

ඔබේද Law, Dhanushka

warren Tuesday, 08 November 2022 08:17 AM

Leave aside Danushka Gunathilaka's case. The so-called definition of "consent" makes copulation an extremely artificial act!

Shelly Belly Tuesday, 08 November 2022 08:23 AM

Very confused with the information reported in the media. No matter what this scoundrel has done in the past there is more to this story. It could have been entrapment or a set up. Why did she take him to her house? Reports said they met on four prior occasions but she claims he assaulted her only this time? Reports say they met via a "dating app" and that says a lot about the nature of this relationship/friendship. The woman's intentions are questionable considering the new laws that have come into effect only 5 months ago. Is that a coincidence? I am not buying it until I hear the facts of the case. He may be a notorious character but justice must prevail to whomever deserves it.

Punchi Tuesday, 08 November 2022 08:50 AM

Under our 2600 year Buddhist civilisation our Buddhist Monks can interpret Buddha’s permissions like killing etc to take place. We must get our Sangas to authorise extra territorial rights of rape of foreign women and then get our foreign minister to threaten using our 330000 standing army to go to war against the minuscule Australian army if our son is not returned to the bosom of mother Lanka

~AD~ Tuesday, 08 November 2022 12:04 PM

"minuscule Australian army"? You are a moron. Australia has a very advanced military. This includes highly advanced F-35 stealth fighter jets.

Shelly Tuesday, 08 November 2022 06:02 PM

Oh dear punchi. Such a poetic justice from you. No need to return but justice must be served. So called mother lanka is as corrupt as her children. She did a poor job with discipline. Coddling, making excuses for their behavior and treating these grown men like thoththa babas is why we are having this discussion today. Going to war as if mother lanka can even feed her army?

Learn Tuesday, 08 November 2022 06:08 PM

@~A~. Learn the meaning/s of miniscule before calling others names.

Mahila Thursday, 10 November 2022 11:13 AM

“Buth” devouring manpower to fill Battalions and Brigades great expense but a force with grit and muster against game plan of enemies with stealth, along with required intelligence and wisdom!!? Not the category, who are politically begotten to drag their war winning commander unceremoniously to imprison with political bias to “suck-up” to their political masters!!??

Gamini Priyantha Tuesday, 08 November 2022 09:02 AM

He don't need punishment after conviction. He has to stay in jail for 3-4 years Just issuing statements for nothing making us a laughing stock.

J.A.D. Perera (Attorney-at-Law) Tuesday, 08 November 2022 10:06 AM

Never mind any sought of laws should be applied, but Danushka Gunathilake should be kept behind bars and all the expenses incurred should be recovered from him.

R.M. Attigalla [Attorney-at-Law] Tuesday, 08 November 2022 10:07 AM

Maximum punishment (life imprisonment even) to be given to Gunathilake who spoilt the good image SriLanka had.

Prof. K.H.K. Wijedasa Tuesday, 08 November 2022 10:09 AM

Sri Lanka Cricket Board and the selectors also answerable for having an injured player for more than 3 weeks without sending him back to SriLanka.

Ganesh Tuesday, 08 November 2022 12:14 PM

Make Sex Education Mandatory and Prostitution legal in Sri Lanka.

Jacinta Jay Tuesday, 08 November 2022 12:30 PM

KARMA IS A BITCH

Sena Tuesday, 08 November 2022 01:22 PM

This guy was also involved in a rape allegation by a Norwegian woman back in 2018 in Sri Lanka. Coincidence? I think not.

Jef Tuesday, 08 November 2022 03:56 PM

Low class start making easy money money like never seen before everything keep changing the lankan way you only think you can get away from anything ..unfortunately the guy probly dint no after few that he was in Aussie

Sriyani Mangalika Tuesday, 08 November 2022 04:27 PM

I am not quite clear about this Cricketer Danushka's case. It is mentioned 'sexual assault'. What I observe is Danushka may be having a medical condition. Assault ?

ANNECUNT Tuesday, 08 November 2022 05:26 PM

What ever the law please punish him properly sri-lanka is a buddhist country we dont want these criminals in our country think if buddhist monks try to do these things in daham pasala

Aussie Tuesday, 08 November 2022 05:35 PM

Reply to Sri: ofourse it applies to both partners. Also both partners concerning homosexual relationships.

Jayanta Tuesday, 08 November 2022 07:04 PM

Hypocrite Srilankans and blundering SLCrickrtboard have a DUTY to support Danushka, in view of Australias Draconion Recent New Laws which would Not be tolerated in England. Both ian Botham and Ben Stokes, (24sept 2017)faced similar problems. Danushka needs A FEMALE WHITE attorney. His offence is UNPROVEd and NOT unusual!! The LAWFirm must be carefully chosen.

“ The Lansi Burgher Gent “ Wednesday, 09 November 2022 09:59 AM

This is a criminal offence which should come under Australia’s legal jurisdiction. There is absolutely no business for Sri Lanka Cricket or any other hood rat to get entangled with, here. Let the justice system take care of this fellow and mete out the same accordingly. Trying to use “influence” like they do here, would only embarrass us further. He was there to play cricket, nothing else. Why is this chap so “special”, that there is so much meddling about? Politically inclined perhaps.

Mahila Thursday, 10 November 2022 12:05 PM

(Part I) 1. Venue Home of girl and whether invited – IN DEVELOPED/WESTERN ALIGNED COUNTRIES, THEY DO NOT DO IT PUBLIC EXPOSED PLACES BU IN CONFINES OF PRIVATE HOMES THERE IS NO GALLE FACE AND UMBRELLAS TO BE SEEN DAY OR NIGHT COVERING THE SHORE VISION 2. Meeting and assault – PREVIOS 4 TIMES ON ZOOM OR THROUGH THE DATING APP AND NOT IN PERSON! HOW TO ASSAULT! 3. Intention – THIS CASE THERE IS NO (TBC)

Mahila Thursday, 10 November 2022 12:08 PM

(PART II) “RELATIONSHIP”, DG PURELY SEEKING FUN AND PLEASURE, EXCHANGE FOR MONEY 4. Purpose of legislation and amendment thereto – ABUSE OF WOMEN HAS COME TO BE HIGHLIGHTED ONLY RECENTLY; ADVENT OF NEW MIGRANTS, DON’T RESPECT WOMEN’S RIGHTS, LIKE DG!!! 5. Whether amendment was coincidental to DG visit – NO MYSTERY - LAW WAS AMENDED RECENTLY, INCREE IN ABUSE BY “DG LIKE PEOPLE” Therefore your conjecture totally and absolutely unfounded!!?? Anything of semblance is DG is non-citizen though not an Immigrant!! – TRUE SENSE?

Mahila Thursday, 10 November 2022 12:08 PM

(PART II) “RELATIONSHIP”, DG PURELY SEEKING FUN AND PLEASURE, EXCHANGE FOR MONEY 4. Purpose of legislation and amendment thereto – ABUSE OF WOMEN HAS COME TO BE HIGHLIGHTED ONLY RECENTLY; ADVENT OF NEW MIGRANTS, DON’T RESPECT WOMEN’S RIGHTS, LIKE DG!!! 5. Whether amendment was coincidental to DG visit – NO MYSTERY - LAW WAS AMENDED RECENTLY, INCREE IN ABUSE BY “DG LIKE PEOPLE” Therefore your conjecture totally and absolutely unfounded!!?? Anything of semblance is DG is non-citizen though not an Immigrant!! – TRUE SENSE?

Ralahami Tuesday, 15 November 2022 05:47 PM

@ShellyBelly.......you're right, we need to know more, his part of the story. He did not break into a house and rape a woman. In vogue right now (US), is accusing some celebrity of sexual harassment, you become automatically a celebrity yourself.

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Recently amended New South Wales consent laws to apply in Gunathilaka case

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