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The draft proposals on consent law in NSW contain some vital reforms, but experts maintain that further action is needed to combat sexual violence. By Bri Lee.

Proposed reforms to NSW consent law

Saxon Mullins, the complainant in the R v Lazarus case, was not optimistic about the review of consent law being carried out by the New South Wales Law Reform Commission. “I almost thought that there would be no changes,” she said this week, “because I guess I’m a bit used to the outcome not really going well with these things, so I thought the same would happen here.”

In 2015, Luke Lazarus was found guilty of sexually assaulting Mullins, but the decision was overturned on appeal because the trial judge had erred in giving directions to the jury. After Lazarus was acquitted at the retrial, which was heard without a jury, the Court of Criminal Appeal found the judge in the second trial had also erred, but ruled that a third trial would be unfair.

The morning after Saxon Mullins’ story aired on the ABC’s Four Corners, in May last year, the NSW attorney-general, Mark Speakman, announced he was referring consent law to the Law Reform Commission. Terms of reference for the review of section 61HE of the Crimes Act 1900 (NSW) were announced shortly after, and two rounds of submissions followed. A document of draft proposals was released last month. The final day for individuals and organisations to make submissions in response to that draft is Monday.

Mullins is now a survivor advocate, and received the 2018 Young People’s Human Rights Medal. In August she was contacted by two policy advisers involved in the commission to have a meeting and discuss the changes, which she did in October. Ultimately, she said, “it seemed like they did take on board a lot of the feedback they had received. I think in general the approach to make the laws clearer and easier to understand is a fantastic thing.”

The commission’s draft proposal includes three new “interpretive principles” that should govern the application of the new subdivision: “every person has a fundamental right to choose whether or not to participate in a sexual activity; a person’s consent should not be presumed; and sexual activity should involve ongoing and mutual communication, decision-making and free and voluntary agreement”. The draft includes specific mention of the “freeze” response and an entire page of proposed jury directions designed to encourage jurors to question their own perspectives and prejudices. These changes are in response to many submissions from researchers and front-line and advocacy organisations; however, there are ongoing concerns about the efficacy of the commission’s draft amendments to the relevant sections of the act.

Most of the controversy and judicial error around the Lazarus decisions and appeals surrounded Lazarus’s alleged state of mind, rather than Mullins’. There was consistent acceptance that Mullins had not consented to the intercourse, but the legal and ethical question at the heart of the appeals was whether Lazarus knew, or ought to have known, that she did not. The finer legal question is also about whether defendants in cases where consent is debated should be held to the standard of a “reasonable person” or whether the jury should ask if the individual defendant’s beliefs were “reasonable” from their perspective.

Dr Rachael Burgin is a researcher, with expertise in the area of consent law reform, who made submissions to the commission on these issues. She said the draft proposals “go some way to clarifying the law for juries, for example through splitting the law into multiple sections, simplifying the language and producing a single list of circumstances in which a person ‘does not’ consent”. However, she added, they contain “relatively few changes to the most controversial part of the existing law – the reasonable grounds test”. In this regard, Burgin said, “the proposals do not reflect many of the recommendations of the submissions, nor the literature exploring how affirmative consent is functioning in practice”.

Submissions supporting law reform frequently cited legislation in Tasmania and Victoria, which is referred to as a “positive consent model”. This legislation requires the defendant to have taken steps either verbally or physically to inquire whether the complainant was consenting. The draft proposals for NSW do not go quite that far, although the difference is subtle.

Burgin said the draft proposals direct juries to “consider the circumstances of the case, which can include any verbal or physical steps that the accused person took in determining whether the other person consented … However, if the accused person did not take steps, then the jury simply considers the other circumstances. There is no requirement that a person actively – through actions or words – ensure the other person is consenting.” Burgin’s final submission to the commission will include critique that “it is not clear how these draft reforms would have changed the outcome in the Lazarus case”.

Hayley Foster, the chief executive of Women’s Safety NSW, said “overall, we see the reforms as progressive” and that she supported the interpretive principles. However, the organisation’s clients “regularly report instances of ‘freeze’ ” in the context of domestic and family violence, due to fear of repercussions for either themselves or their children. Foster said the law should “require” juries to consider if the defendant said or did anything to ascertain consent, rather than merely saying juries are “able” to make such a consideration. The organisation’s final submissions to the commission will reiterate its position – that “in the context of an abusive relationship, whereby the person seeking consent has been subjecting the other person to coercive control, the bar for affirmative or communicative consent should be even higher”.

Karen Willis, executive officer of Rape and Domestic Violence Services Australia, said “clear evidence about what the accused said or did to confirm consent was given must be included in the evidence … In other words, ‘yes’ means ‘yes’ and nothing less.” Willis said the organisation will also be reiterating its recommendations for a “no reasonable belief” test, and that jurors should be directed to give consideration to “the personal opinions, values or attitudes held by the accused person that do not meet community standards”. This would clarify that defendants should not be able to rely on outdated or prejudicial views they might hold.

Submissions made by the NSW Bar Association, in response to the commission’s earlier consultation paper, stated that “an affirmative onus would not displace rape myths” and “would not address ‘outdated’ views among a jury”. The association’s recommendations are that two separate offences be created: one for sexual assault, where it could be proved the defendant actually knew the complainant was not consenting or was indifferent to this; and another, lesser charge, with lesser penalty, for “a different and lower standard” reflecting situations in which the defendant was negligent about consent. They submitted that it was not appropriate to “impose liability for so serious an offence” in situations of negligence. The commission’s draft does not explicitly engage with this suggestion.

Tim Game, SC, president of the NSW Bar Association, said the association “is committed to continuing to assist the New South Wales Law Reform Commission on this important issue”, and that it “hope[s] to be in a position to publish our position when possible”. A spokesperson for the Law Society of NSW confirmed it would also be making a final submission in response to the commission’s draft reforms, but similarly was not in a position to provide specifics before this article went to press.

Mullins believes some of the simplifications in the draft reforms may have positive impacts for people other than jurors, adding that clarifications around the laws “will help judges as well”.

“In both my trials, there were errors made by judges,” she said. “Errors that caused appeals and uncertainty and a feeling of ‘will this ever end’. If we can avoid that, it will really make a difference for survivors, too.”

Mullins said one of the strongest parts of the proposal was the new content on what is referred to as “stealthing” – when someone consents to intercourse specifically with the use of a condom, and either the intercourse begins or at some point continues without one. “It’s the only specific legislation like this in any state of Australia,” she said, “and was something that arose directly from submissions made to the commission.”

A Melbourne Sexual Health Centre and Monash University study published in December last year found that more than 30 per cent of women had been “stealthed”. The commission’s draft document states: “Consent to a sexual activity being performed in a particular way does not, of itself, mean there is consent to the activity being performed in a different way.” Provisions on “stealthing” offer an opportunity to clarify the legal position on what is, essentially, a problem of community attitudes.

Burgin, Foster, Willis and Mullins all shared similar frustrations about the limited scope of the commission’s inquiries. Willis said that although reviewing consent law was important, “the entire criminal justice response to sexual violence must be revised. Only full revision will bring our current outdated response into line with 21st-century standards.”

Rape and Domestic Violence Services Australia has made specialist sex crime courts a key campaign message for 2020. Foster, from Women’s Safety NSW, added the need for “specialisation, reforms to court procedure, increased support for victim-survivors, and substantial investment in cultural and attitudinal change”. Foster acknowledged that “law reform is the first step” and that it “sets the tone and a framework for change”.

Mullins expressed a similar hesitant optimism in response to the draft overall. “I especially like where they have said, ‘The purpose of this statement is to … provide a firm foundation for community education initiatives about consent,’ ” she said. “That’s where magic lies. In an underreported crime like sexual assault, just changing the law does nothing. We need to change society. We need to change the people and we need to change the men. This is a step in that direction, but there is so much more that we could be doing and I hope this helps start that.”

National Sexual Assault, Domestic and Family Violence Counselling Service 1800 737 732

This article was first published in the print edition of The Saturday Paper on Nov 16, 2019 as "Tabling of consent". Subscribe here.

Bri Lee
is a lawyer and the author of Eggshell Skull and Beauty.