Opinion

Bri Lee
The old guard preventing reform to consent laws

On the last day of July, the Queensland Law Reform Commission’s (QLRC) report on consent and the “mistake of fact” excuse was tabled in parliament. In the commission’s own words, it did “not recommend extensive changes to the existing law”. The Queensland government has already indicated it will act on the findings, which in this case means not to act.

According to Julie Sarkozy, a solicitor for the Women’s Legal Service Queensland, the changes “are so insubstantial that we expect there to be no or little difference in the experience and criminal justice outcomes for victims of sexual violence”.

Several facets of the commission’s 10-month process have turned out to be farcical and highlight enduring barriers to reform across Australia. Despite the terms of reference requiring the commission to consider the views of survivors and relevant experts, the perspectives of these individuals and organisations were ignored on multiple occasions. The final report clearly reflects the almost homogeneous legal backgrounds of the appointed commissioners.

I became involved in the campaign to change these laws in late 2018. My work followed years of campaigning by the women’s legal service, as well as academics and activists, against the “mistake of fact” excuse. Under “mistake of fact”, the law allows a defendant to say, in response to any criminal charge, that they had an honest and reasonable belief that what they were doing was lawful – in practice, a man could beat a charge of rape if he believed the woman he assaulted was consenting, even if her evidence was to the contrary. Peer-reviewed research, conducted by Professor Jonathan Crowe and myself, showed that the excuse undermined the way consent was defined in Queensland and allowed rape myths to play out in trials for rape and sexual assault.

On July 9, 2019, the issue was referred to the QLRC. At the time I felt the review could be Queensland’s opportunity to go from the most regressive to the most progressive state in Australia. In February this year Crowe and I took part in a “consultation discussion workshop” organised by the commission, supposedly to ensure that victims and survivors of sexual violence, and the organisations that represent their interests, would be heard. In the commission’s final report, the word “workshop” is mentioned four times: three times to say that it had happened, and the fourth in the appendix to list the attendees.

The report does not say that by the end of the four-hour consultation, all of the 39 attendees, representing 19 different organisations and many survivors, voted in favour of a specific draft of new legislation. There is no attempt in the report to explain why this unanimous response was ignored, but it was ignored. This attitude is not confined to the QLRC. The body is representative of a broader problem in the legal fraternity: if an individual is not from within the profession, they are not credible and they are dismissed.

Of great concern, and somewhat ironic, is the commission’s cherrypicking and potential misrepresentation of the “evidence” about rape myths. The report cited an unpublished and non-peer-reviewed research paper from Britain to support its statement that “the influence of some of the suggested ‘rape myths’ may be overstated”. A joint response from the women’s legal service and the organisation Rape and Sexual Assault Research and Advocacy (RASARA) says the report “completely overlooks a significant body of recent peer-reviewed Australian research”, including the prevalence of the view that women “make up false reports” of sexual assault to punish men. The commission relied on its selection of the “evidence” to dismiss a proposal for expert witnesses – people who could inform the jury about trauma responses, for example – to be called in the same way as they are in Victoria and New Zealand.

Saxon Mullins, who is a survivor of assault and the director of advocacy at RASARA, said the outcome was even worse than in a similar review in New South Wales. “Sometimes all we hope for is the bare minimum of positive changes,” she said, “and we didn’t even get that with the Queensland review.”

The NSW Law Reform Commission has not released its own final report into consent law reform, and two years have passed since the 2018 referral that Mullins’ advocacy catalysed. Survivors and advocates have found the NSW draft amendments to fall far short of what was hoped for, citing conservative opposition from within the legal profession.

The Queensland review said it did not consider it “desirable, either as a matter of principle or from a practical standpoint, to … change the meaning of ‘consent’ to require a clear and unequivocal ‘yes’ ”. The report rejected requests for a “reasonable steps” standard, for consent to be an “agreement” between two people, or for a standard where a defendant would be culpable if they were “recklessly indifferent” to whether the complainant was consenting. These are all slightly different ways of conceptualising and describing what behaviour and effort we expect from someone who wants to have sex with someone else. The commission found an affirmative consent model is undesirable as it “departs from the traditional model of consent in the criminal law” – this, despite Tasmanian law requiring positive steps and reasonableness since 2004. Mullins says, “The disappointment of these reviews keeps hitting survivors in the face again and again and again; you would think we’d be used to it by now but it is a horrible feeling every single time.”

In the consultation paper, the commission outlined plans to consider whether the non-consensual removal of a condom, known as “stealthing”, should be specifically listed as an action vitiating consent, along with the non-payment of a sex worker. The final report offers no new legislation or recommendations on either point. These critical issues have, once again, been deferred.

Last week the chief executive of the Women’s Legal Service Queensland, Angela Lynch, had a meeting with Di Farmer, Queensland’s minister for Child Safety, Youth and Women and minister for the Prevention of Domestic and Family Violence. After the meeting, the legal service was invited to write an analysis of the commission’s report. The analysis notes that none of the commissioners appointed “had experience and expertise in working with victims of sexual violence or from the Office of the Director of Public Prosecutions, who prosecute these offences on behalf of the State”. By my count, four of the five commissioners are either current or former defence lawyers, and none had experience in prosecution. To be appointed, commissioners must be “suitably qualified” by “holding of judicial office or by experience as a barrister or as a solicitor or as a teacher of law in a university”. Lynch said “there should have been an academic with expertise in sexual violence and the criminal justice system appointed as a commissioner as well”, but such voices, likely to advocate for reform, were clearly not appointed.

Lynch also noted that “the QLRC summarises the Canadian and Tasmanian laws but does not examine their approaches, nor therefore undertake any critical analysis of the evidence that exists in these jurisdictions to support a changed approach to consent”.

When Sarkozy was asked on ABC Radio why no changes were being made despite the community’s calls and consultations, she replied, “The reason why is because perhaps the voices against change, the voices to maintain the status quo, are much stronger.”

The legal establishment in both NSW and Queensland is strenuously opposed to reform. The Queensland Law Society released a media statement titled “QLS opposes change to 120-year-old sexual consent laws” as though the legitimacy or efficacy of a law has anything to do with its age. Community standards, particularly around gendered and sexual violence, have progressed to the point that, arguably, the older a law is, the less it is likely to represent the interests of the people it is supposed to protect. Yet this perspective runs counter to a profession built on hierarchical deference to precedent.

Dr Rachael Burgin, chair of RASARA and a law lecturer at Swinburne University, said the QLRC’s report is “the latest example of the Australian legal profession being resistant to challenges to the status quo and to the system that they value”. When communities call for reform, the recurring retort from the profession is that expecting defendants to have said or done something to seek consent would be “shifting the burden of proof”. Burgin says, “Whether this is true is never fleshed out, since the argument is effective in shutting down discussions.”

Burgin says the QLRC report “failed to engage with 40-odd years of research showing that rape myths endure in both the community and juries. There is an insider status awarded to certain members of the legal community, and anyone who advocates for reform or change who challenges things is labelled as being radical or compromised or unreliable.”

Still, Burgin holds out some hope for a better response from the Victorian Law Reform Commission, which has been tasked with reviewing the justice system’s response to sexual offences. “What is exciting about this review,” she says, “is that the commission has been given broad terms of references that seek a holistic view of the response to sexual violence.” It may eventuate that members of a law reform commission are prepared to make critical recommendations about other areas of the process, such as policing and case attrition. Commissioners in Victoria include former prosecutors and academics, as well as defence barristers and members of the judiciary.

The alternative is what happened in Queensland: years of campaigning coming to an end when the old guard of the legal profession gets a chance to stand in the way of change.

This article was first published in the print edition of The Saturday Paper on Aug 15, 2020 as "The old guarding the fox".

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