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For years, advocates against sexual assault have been pushing for law reform, particularly on the of issue consent. Now they’ve had a win, with sweeping new changes announced in NSW. Today, Bri Lee on what the changes mean, and the politician leading the charge.

How to make a law for consent

Read Transcript

For years, advocates against sexual assault have been pushing for law reform, particularly on the of issue consent. 

Now - they’ve had a win, with the NSW Attorney General announcing sweeping changes, which go even further than what was recommended by an independent inquiry.

Today, writer for The Saturday Paper Bri Lee on what the changes mean, and the politician leading the charge. 

Guest: Writer for The Saturday Paper Bri Lee.

Read Transcript

[Theme Music Starts]

 

RUBY:

From Schwartz Media, I’m Ruby Jones - this is 7am.

 

For years, advocates against sexual assault have been pushing for law reform, particularly on the of issue consent. Now - they’ve had a win, with the New South Wales Attorney-General announcing sweeping changes, which go even further than what was recommended by an independent inquiry. Today, writer for The Saturday Paper Bri Lee on what the changes mean, and the politician leading the charge. 

 

[Theme Music Ends]

 

RUBY:

Bri, last week, the New South Wales government announced some big changes to the state's sexual assault laws, including changing the definition of consent. How did this come about? 

 

BRI:

So this sort of latest push for change started with the high profile sexual assault case back in 2013. It was when a young woman, Saxon Mullins, accused a young man, Luke Lazarus, of raping her sort of out the back of a nightclub in Kings Cross. And so this really…. this 2013 matter really sort of exploded, in terms of the media attention it got. 

 

Archival Tape -- Newsreader 1

“He had an inflated sense of power, superiority and entitlement, Luke Lazarus thought he was invincible.”

 

Archival Tape -- Newsreader 2

“The young woman told the court in a statement on Thursday ‘A part of me died that day, the part that saw the good in everyone.’” 

 

BRI:

And what happened then was that in the first trial, Lazarus was found guilty...

 

Archival Tape --Newsreader 3

“Sentenced to at least three years. Luke Lazarus has been jailed for sexually assaulting a teenager in a laneway in Sydney's Kings Cross” 

 

BRI:

...and he appealed. 

 

Archival Tape -- Journalist 1

“What would you like to say?”

 

Archival Tape -- Luke Lazarus

“I'm very much looking forward to a retrial. I'm excited to clear my name in the future.” 

 

Archival Tape -- Journalist 2

“And you’re happy to be home with your family?” 

 

BRI:

And then he was found not guilty, not because Mullins had given consent, but because of what the New South Wales consent laws say about a defendant's state of mind. 

 

Archival Tape -- Newsreader 3

“Luke Lazarus was hugged by his mother and father, then walked from court, found not guilty of rape. His alleged victim, who cannot be identified, had already fled the court in tears.”

 

Archival Tape -- Journalist 3

“Do you accept that the young lady in question believed she did not give consent?” 

 

BRI:

So the second judge found that while Mullins had not consented to having sex, Lazarus had no reasonable basis for believing she had not, which is, you know, a whole lot of double negatives. But it basically comes down to this mistaken belief. Did the defendant believe the complainant was consenting even if she was not? 

 

Archival Tape -- Sarah Ferguson

“Welcome to Four Corners, the events of that night in Kings Cross would change Saxon Mullins life forever. “

 

BRI:

And so Saxon Mullins spoke to Four Corners about what had happened. 

 

Archival Tape -- Saxon Mullins

“My name is Saxon Mullins. In 2013, when I was 18 years old, I was raped in an alleyway in Kings Cross.”

 

BRI:

And when Saxon spoke to Four Corners and when that Four Corners report aired, it was the first time any of us had heard her name, had heard her voice. 

 

Archival Tape -- Saxon Mullins

“I just kind of froze, you know, and I was just trying to like... it doesn't make sense... but block it out, like, just wait till it's over” 

 

BRI:

And really couldn't look away from her incredibly powerful testimony and what she had to say about this and what it represents about the law and about our society. 

 

Archival Tape -- Saxon Mullins

“All you need to say is, do you want to be here? And very clearly, do you want to have sex with me? Do you want to be doing what we're doing? And if it's not an enthusiastic yes, then it's not enough.” 

 

RUBY:

So Bri, after that Four Corners story aired, what sort of impact did it have, what did it lead to? 

 

BRI:

Well,  it's pretty undeniable that her speaking out prompted and was the catalyst for this, you know, subsequent years-long push for reform. 

 

Archival Tape -- Mark Speakman

“Last night, we saw on Four Corners an extraordinarily brave young woman tell her personal story…”

 

BRI:

Because it was the next day that the New South Wales Attorney-General, Mark Speakman, announced that they would be referring consent laws to the New South Wales Law Reform Commission. 

 

Archival Tape -- Mark Speakman

“This raises questions about whether the law in New South Wales is adequate. Is our law clear enough? Is our law fair enough? So I've asked the Law Reform Commission, having consulted with Minister Gaute to consider these issues. I want the commission that…” 

 

BRI:

That Law Reform Commission process took to over two years with multiple rounds of submissions from community voices, survivor advocates, researchers and obviously also legal professionals and legal stakeholders 

 

Archival Tape -- Mark Speakman

“And importantly, to consult all stakeholders, but in particular survivors. These stories of survivors, the experiences of survivors personally and the criminal justice system must be taken into account...”.

 

BRI:

And then they came out with their sort of recommendations and report last year. And then Speakman made his announcement about what he would actually do last week. 

 

RUBY:

OK, so tell me about the announcement that Mark Speakman made. What did he say? 

 

BRI:

Yeah, I was there in the room and I just want to say that it was quite incredible. I just had goosebumps the whole time, to be honest. 

 

Archival Tape -- Mark Speakman

“Well, good morning, everyone. I'm joined today by Saxon Mullins from Rape and Sexual Assault Research and advocacy by the police commissioner, Mick Fuller, and by my colleague Sarah Mitchell, the Education Minister.” 

 

BRI:

So he said that the New South Wales Law Reform Commission made, I think, 44 recommendations that the government was accepting, either in whole or in principle, all of those, but in a particularly important regard, they were going one step further. And that was that the New South Wales Law Reform Commission did not recommend an actual affirmative definition of consent.

 

Archival Tape -- Mark Speakman

“But in one respect we’ll be going further. Two key reforms will be in relation to consent, to make it clear that there cannot be consent unless the party in question has said something or done something to communicate consent….”

 

BRI:

So in a common language, I find the easiest way to communicate this is that basically, unless it's enthusiastic, it's not good enough. To be more specific, though, it's that something actually has to be said or done. The complainant has to have said or done something to indicate that they were consenting. And this really key question of what was in the defendant's mind is where what Speakman announced is so impressive.

 

Archival Tape --Mark Speakman

“This is about holding perpetrators to account. But more than that, it is about changing community behaviour. It is about having a society where people ask simple questions “are you consenting?” where consent is affirmative, where consent is sought, and not just assumed through lack of protest or lack of physical reaction.”

 

BRI:

So it's just… it really brings us into the 21st century, to be honest, in terms of of what we should be able to expect from two people who want to have sex with each other. And Saxon Mullins was there and she said that New South Wales is now leading the way and that she hopes the other states and territories will sort of look to New South Wales as an example. 

 

Archival Tape -- Saxon Mullins

“Not only is law reform a significant step. We also must take the steps to ensure that all survivors’ voices are heard and that justice is sought, whichever way that is for them. Thank you all so much. I'm really proud of all the work we did to get here. Thank you.”

 

RUBY:

We'll be back in a moment. 

 

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RUBY:

Bri, you recently sat down with the New South Wales Attorney-General, Mark Speakman, to talk through these changes that he's proposing making to consent law. Can you tell me about where that conversation began? 

 

Archival Tape -- Mark Speakman

“Testing...” 

[Microphone set up sounds]

 

BRI:

Yeah. So the first thing I asked him about was this standard that they had landed on. 

 

Archival Tape -- Bri Lee

“I'm very interested in hearing what got you over the line in taking the consent standard one step further than what the New South Wales Law Reform Commission recommended.”

 

BRI:

Because typically the politicians, the government will just do what law reform commissions recommend because they've sort of been just sort of given a hall pass to just go along with it. And I was just incredibly impressed by the way he described his sort of personal and professional opinion that this new legislation will clarify the matter for everyone and that it's good law. 

 

Archival Tape -- Mark Speakman

“Look at the end of the day I think it basically came down to common sense, and respect and decency. If two people are to have sex, each should be satisfied that the other one wants to participate. The Law Reform Commission went part of the way in saying that you don't have consent unless it's communicated - unless there is something said or done to indicate consent. It didn't go quite the rest of the way - that if something hasn't been said or done by one party that that other party must do something to ascertain that there is consent. So I think it’s just common sense in relationships… “

 

BRI:

And he was just able to articulate really clearly why he thought an affirmative consent model was the best law. 

 

Archival Tape -- Mark Speakman

“Often people criticise grey areas in the law. If anything, this reduces the grey area because with a community of affirmative model of consent, you're asking for something explicit - that there is an overt statement or act that people are consenting, rather than relying on inference from what isn't what isn't said or what isn't done.”

 

BRI:

And he also, you know, was willing to say that they were listening to the voices of survivors and survivor advocates. And I quote and he said he doesn't think that it's, you know, putting too high a standard on defendants because...

 

Archival Tape -- Mark Speakman

“...at the end of the day, you shouldn't have sex with someone unless you know that they want to have sex with you and it's not that hard to ask a question, or, or have some kind of act that does it.” 

 

BRI:

And it's just so refreshing to hear that level of frankness, simplicity in communication, style and honesty from someone in a leadership space, you know, in terms of law reform on this matter. It's really great. 

 

RUBY:

And when Mark Speakman announced those changes, he did so alongside the New South Wales Minister for Education. What does that tell us about the government's broader strategy here on the issue of consent? 

 

BRI:

Yeah, I asked him about this because I was really interested in that. I don't think you would have seen one, two, three years ago an announcement about consent law reform happening at a press conference where the Attorney-General is joined by the Minister for Education. You know, that in and of itself, I think demonstrates honestly the progress we have made as a society in understanding that if we want to tackle sex crime, it has to be from all different directions and at many different stages of people's lives. I was very impressed with the way Speakman was able to, for example, talk about the difference between ethical and legal consent, that he thinks that ethical consent should be taught in schools because this legal standard, which, you know, the new one we've got in New South Wales is better. But he was willing to say that even the legal standard that we will have is that sort of a bare minimum that you would hope, especially young people are taking with them that standard to interact sexually with each other. 

 

Archival Tape -- Mark Speakman

“There's a difference between what ought to be criminalised and what is appropriate, moral behaviour. I mean, for example, adultery is not criminalised but most people would disapprove of adultery. The kind of very minimum standards that the Crimes Act will impose, I would hope people would go above and beyond that, in an enthusiastic way.”

 

BRI:

And so part of his announcement was also that they would be doing a whole lot of research, you know, more generally into the experiences of survivors of sex crime in the criminal justice system and also the education - looking at consent and respectful relationships, relationships and sexuality education across schools as well.  So I'll be interested to see how that actually plays out. Obviously, I've done a lot of reporting on that recently, and the experts I've spoken to say that, you know, you do inevitably have a vocal minority, a sort of conservative pushback to trying to get relationships and sexuality education into schools. But at the moment, I am...yeah, I'm optimistic. I'm seeing some pretty strong leadership. 

 

RUBY:

Hmm. And what do you think is underlying all of this for Mark Speakman? He does seem to be going further than any other politician at the moment to try and change the way that we look at sexual assault and harassment. Did you get a sense from him of why he's doing this? 

 

BRI:

That's a really good question. And it's something I've been asking myself all week since I spoke to him. Obviously, you know, he is a politician. There are, I'm sure, sort of, you know, policy objectives and voting profiles and polls that have been done. But I also got the sense when I was speaking to him, he actually really… he just wants to get things done. 

 

Archival Tape -- Mark Speakman

“But it's important that we have a big education piece across the community so the community understands these new laws, and that they lead to social change…”

 

BRI:

And he's somebody who seemed to me to be able to make decisions and then act upon them. And frankly, I think it's more of an indictment on this standard of lack of leadership that we have come to expect from politicians that one who is willing to just make decisions and act on them and get things done and stand up and do it, get it done. I mean, he's. Yeah, a bit of an outlier. It's very refreshing. 

 

Archival Tape -- Mark Speakman

“It's not unromantic. It doesn't kill the mood, the joy of the moment, you don't need to film it, you don't need a long contract you just need a very simple question, or a very simple gesture that indicates that someone wants to have sex with you.”

 

RUBY:

Bri, thanks so much for your time today. 

 

BRI:

Thank you. 

 

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[Theme Music Starts]

 

RUBY:

Also in the news today…Victoria’s acting Premier James Merlino has criticised the Federal Government for failing to offer financial support to Victorian workers who have lost wages due to the current lockdown. On Sunday, the Victorian government unveiled a $250 million support package for small and medium sized businesses, including sole traders.

 

And the NSW Labor party is heading for a leadership showdown, with former state leader Michael Daley announcing his intention to run for the top job. He’s like to face off against former leadership aspirant Chris Minns. The battle for the leadership of the state Labor party comes after Jodi McKay stepped down following a bruising by-election result.

I’m Ruby Jones, this is 7am. See ya tomorrow.

 

[Theme Music Ends]

 

Host

Ruby Jones is an investigative journalist and host of 7am.

Guest

Bri Lee is a legal academic and the author of Who Gets to Be Smart.