Why all Australian states should have affirmative consent laws
In 2013, when I was 18 years old, I was sexually assaulted behind a nightclub in Sydney’s Kings Cross.
The second trial of my case ended with an outcome that seems like it shouldn’t have been possible: the court acknowledged that I had not consented but that the accused did not know. His conviction was overturned. I was supposed to run; I was supposed to kick and scream. I was supposed to be a better rape victim.
Unfortunately, I have always been burdened with being only myself. To run away and kick and scream was not how my brain had chosen to protect me on that night in 2013.
I did what many victims of assault do. I froze.
Under the current New South Wales law, a person commits sexual assault if they know the other person is not consenting, if they are “reckless” as to whether the other person consented, or if there are no reasonable grounds for believing there was consent. According to the court, my frozen body was all the consent that was needed.
My legal battle lasted four years, with two trials and two appeals. When I came forward with my story on an episode of Four Corners in 2018, the NSW attorney-general, Mark Speakman, announced the government would be asking the NSW Law Reform Commission to review section 61HE (formerly s61HA) of the Crimes Act 1900 (NSW), the section of the law that deals with sexual offences and consent. It was obvious to me and many others that the way the law dealt with consent was archaic and needed to be changed, and so began my crusade to change it.
It’s a funny thing becoming an advocate when you have not yet allowed yourself to heal from the very experience you speak about every day. In my public advocacy I would speak of the importance of checking in with your partner, that it was your responsibility to make sure they were consenting. In private, I would wonder if I did enough, if it was really as bad as I said. Maybe I should have been able to just run away. It’s a dichotomy I’m still apprehensive to speak about as I know how survivors’ words are used as evidence against them, even when all the trials are over.
My journey in activism helped me to hone my understanding of how affirmative consent laws worked, with the guidance of experts in this field. Essentially, this model of consent asks that a person ascertain whether someone wants to have sex before and while engaging in a sexual act. It’s not complicated. In fact, it’s very ordinary.
I have been fortunate to work with Dr Rachael Burgin and Professor Jonathan Crowe, who have educated me and supported me on my crusade. Together we formed Rape and Sexual Assault Research and Advocacy, a national organisation committed to reforming rape and consent laws across our country and advocating for the sexual wellbeing of all Australians. Alongside the other formidable members of the group, we have fought hard for affirmative consent laws, preparing submissions to reviews, raising awareness around affirmative consent and wider relationships and sexuality education.
When the NSW Law Reform Commission came out with their final recommendations in November 2020, the report proposed new jury directions to address misconceptions about sexual violence and recommended that the law should state that a person does not consent if they do not say or do anything to indicate consent. However, the commission did not go so far as to recommend affirmative consent. They cited concern for “the rights of accused persons” despite an affirmative consent model being in place in Tasmania for many years without problems.
It felt as though I had failed. If my trial were heard again, it could very well have the same outcome. What was the point of all of my pain being continually dredged to the surface like sand in a wave if it was to end up right where we had started?
Then the phone rang.
The NSW attorney-general’s office called and asked if I had a moment to talk. They had listened and they had heard. They were going to legislate affirmative consent laws in NSW.
The reforms, currently in the NSW Legislative Council, will mean that a person does not consent to sexual activity unless they say or do something to communicate that consent and an accused person’s belief in consent will not be reasonable unless they said or did something to ascertain consent.
In practice, affirmative consent is so simple you’re probably already practising it. When you want to have sex with someone, you ask whether they also want to have sex with you. Not exactly rocket science.
There are of course those who oppose the idea of affirmative consent laws. Perhaps loudest among them is the NSW Bar Association, which believes the law reforms are “fundamentally misguided” and could “criminalise consensual sexual relations”. But “consensual sexual relations” are not what victims go to the police to report. If you are engaging in “consensual sexual relations” there is no reason to engage the law.
Such an egregious comment might be why an open letter opposing the views of the Bar Association was signed by more than 20 leading NSW barristers. “Recent years have confirmed that the current balance struck by sexual assault laws is not satisfactory,” they wrote. “Something needs to be done. While the rights of the accused should not be lost, the interests of the victims need better protection.”
These reforms are not reversing the burden of proof; they are putting in place an evidentiary burden when someone wants to use a certain defence. It is simply defining what is reasonable. Is it reasonable to assume someone consents based on absolutely no evidence? I think not, and the NSW Legislative Assembly agrees, with various MPs, including Attorney-General Speakman, describing these laws as “common sense”.
When these reforms become law, NSW will join Tasmania as the only two states in Australia with affirmative consent laws.
Last week, Victoria announced it would also join in amending its laws. In response to recommendations from the Victorian Law Reform Commission’s report “Justice System Response to Sexual Offences”, the Andrews government said it would introduce an affirmative consent model next year. As well as including explicit laws against the removal of a condom during sex without the other person’s knowledge, known as “stealthing”, the Victorian government will develop a 10-year whole-of-government strategy to address sexual violence.
While we hang on to cautious optimism until the legislation itself is made public, the message from the Victorian attorney-general, Jaclyn Symes, is loud and clear: “To victim-survivors, we hear you. The system must change. This is too important not to act.”
Hopefully that message is heard around Australia, in other states where the laws around sexual offences are stuck in the past.
The time for consent reform has long been here, but in a year of March4Justice, of survivors gracing the cover of magazines, of the veil being further lifted, it seems there’s never been more of an appetite for every state in Australia to legislate for affirmative consent.
I look back at my 18-year-old self, unaware of what was ahead, the good and the bad, the pain and the triumph. If I could show her what would come of her sharing her story, I don’t know if she’d believe me. I don’t know if I even really believe me.
Sexual violence thrives in darkness. It relies on our silence to stay alive. It grows under the weight of your suffering. But when a survivor acknowledges their pain, a light turns on. When they tell a friend, the darkness is pushed further away. Last week, as affirmative consent laws passed the NSW Legislative Assembly, and were promised in Victoria, for just a moment, they lit up the whole damn place.
For once, instead of looking back I’d like to look ahead. I’d like to look to an Australia where all states have affirmative consent enshrined in law, where our education system teaches comprehensive relationship and sexuality education. I’d like to wonder what a life and a world without sexual violence might feel like. I think that world feels like home, and I think it would be lit up like a Christmas tree.
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 20, 2021 as "Consent in the affirmative".
A free press is one you pay for. In the short term, the economic fallout from coronavirus has taken about a third of our revenue. We will survive this crisis, but we need the support of readers. Now is the time to subscribe.
Letters & Editorial