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Saxon Mullins on the push to update Australia’s laws around sexual assault, and why it’s taking so long.

The historic reforms to sexual consent laws



On Tuesday, the NSW Parliament passed historic reforms to sexual consent laws.

During the parliamentary debate one MP thanked survivor and campaigner Saxon Mullins who kickstarted the campaign to change the law when she appeared on the ABC’s Four Corners program.

Now, similar laws are being introduced in Victoria, and advocates are calling for national reform.

Today, campaigner and contributor to The Saturday Paper Saxon Mullins, on the push to update Australia’s laws around sexual assault, and why it’s taking so long.

 

Guest: Campaigner and contributor to The Saturday Paper, Saxon Mullins.

 

Show Transcript

[Theme Music Starts]

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

 

Archival tape -- Abigail Boyd:

I wish to put on record my sincere thanks to the Attorney General for not just taking steps to reform sexual consent law, but to put forward a reform that will actually make a difference...

 

RUBY:

On Tuesday, the NSW Parliament passed historic reforms to sexual consent laws.

 

Archival tape -- Abigail Boyd:

The bill in front of us today is so important. This isn’t about punishing perpetrators. It’s about providing justice for victim‑survivors. A clear signal that we are not to blame for the actions that were done to us by other people.

 

RUBY:

During the parliamentary debate one MP, The Greens’ Abigail Boyd, shared her own story.

 

Archival tape -- Abigail Boyd:

The impact of rape cannot be overstated. I have spoken in this place before about my own experiences of sexual assault....

 

RUBY:

She also thanked survivor and campaigner Saxon Mullins who kickstarted the campaign to change the law when she appeared on the ABC’s Four Corners program.

 

Archival tape -- Abigail Boyd:

I hope she knows how important her words, her honest sharing of her story—and the way in which she has pursued this law reform—has been for women and girls everywhere. Saxon, you gave me strength that night to start telling my own stories.

 

RUBY:

Now, similar laws are being introduced in Victoria, and advocates are calling for national reform.

Today - campaigner and contributor to the Saturday Paper - Saxon Mullins, on the push to update Australia’s laws around sexual assault, and why it’s taking so long.

It’s Wednesday, November 24.

[Theme Music Ends]

RUBY:

Hi, Saxon, how are you?

SAXON:

I'm good, how are you?

RUBY:

Yeah, I'm good, I'm really pleased to be talking to you about this today.

SAXON:

Oh, thanks. Thanks for having me on.

RUBY:

Mm and I know that this is a topic that is personal for you. Do you think that you could start by talking to me about why that is?

 

SAXON:

So in 2013, when I was 18 years old, I was sexually assaulted behind a nightclub in Sydney's Kings Cross. 

 

I went to the police the next day and entered into what I was unaware would be a years long legal battle that had two trials, two appeals, and ended with no legal outcome. 

 

The first trial we had a jury and the defendant was found guilty. There was an appeal that they won. We had a second trial that was judge-alone, and the judge found the defendant not guilty. And then we had a second appeal by the Crown, and the appeal was upheld. So, the court acknowledged that I had not consented, but that the accused did not know that, and his conviction was overturned because of that reason.

 

RUBY:

Right. So there were a number of trials, but the end result was that the conviction was overturned, and that was because the court found that the defendant didn’t know that you hadn’t consented. Can you tell me more about how that outcome is possible? What is the legal technicality that's underpinning that?

 

SAXON:

So, in the current New South Wales laws - and what were the laws at the time - 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. 

 

But, there's no requirement to determine whether the accused took any steps to find out if that person was consenting. So there is currently no ‘affirmative consent’ model in New South Wales.

 

RUBY:

And would you mind just explaining to me what affirmative consent means? What would an affirmative consent model be exactly? What's the best way to think about it?

 

SAXON:

So, the model of affirmative consent asks that a person ascertains whether someone wants to have sex before and while engaging in a sexual act. So, it just means that you are actively asking someone if they want consent, and you are actively receiving consent from that person before and during a sexual act is going on.

It sounds very technical, calling it ‘affirmative consent', and describing it in this way. But really, it's something that most people do already. It's just asking your partner if they want to be with you, and them saying yes.

 

RUBY:

Ok. And so once you started looking into the ‘affirmative consent’ model, can you tell me about the steps that you took to try and advocate for changes to our legal system to reflect that model? Who did you speak to, and how difficult was it to build momentum around this idea?

Archival tape -- Saxon on Four Corners:

On a social level, I think we need to teach people about making sure that the person you are with wants to be with you. Enthusiastic consent is really easy to determine, and I think...yeah, if you don’t have that, then you’re not good to go…

 

SAXON:

After I came forward with my story on an episode of Four Corners, the New South Wales Attorney-General Mark Speakman announced the government would be asking the Law Reform Commission to review that section of the law. 

 

And so, I joined forces with some amazing minds, in Dr Rachel Bergin and Professor Jonathan Crowe. Together, we formed Rape and Sexual Assault Research and Advocacy, and RASARA is a national organisation committed to reforming rape and consent laws across the country and advocating for the sexual wellbeing of all Australians.

Archival tape -- Saxon on QandA:

Hi. I’m Saxon Mullins, and I’m a survivor. Tonight we’re here to talk about sexual violence and consent.

SAXON:

So, you know, it involved a lot of submissions to law reform commissions, it involved a lot of raising awareness of what is ‘affirmative consent’, and why it maybe isn't as scary as it might sound. 

 

Archival tape -- Saxon speaking at Human Rights Awards:

That’s the good news you don’t need. If any special degrees or diplomas, you can just have a chat and talk to your friends and your colleagues and your families about attitudes towards women and violence against women…

 

SAXON:

And just general relationship and sexuality education awareness as well.

 

Archival tape -- Saxon on the Meaningful Change for Women panel:

We have all said, and we have said for many years but specifically the last few weeks, relationship and sexuality education is definitely a must.…

 

RUBY:

And what was it like for you personally embarking on that role as an advocate? Because I imagine with your own personal experience that is motivating, but it also comes with its own challenges?

 

SAXON:

Absolutely. I think that's something that I think most advocates probably deal with, in that you are the face of this thing because it is so personal to you. So it's really hard to find that balance between keeping it personal, but also protecting yourself when you're trying to engage in this kind of advocacy. 

 

I sort of started this advocacy journey a few years after my assault, but not a very, very long time. And so still within that, I am trying to heal from my own experience. And so it's sort of this... two sides of the same coin - in going out and advocating for affirmative consent and making sure people understand it, and everyone's on board, as well as thinking about my own experience and still having those reservations and those feelings that a lot of survivors have. But, you know, I think it was too important for me not to do.

 

RUBY: 

Mm. Not an easy thing to do by any means. Was there a moment in which you felt things start to turn around? Where you started to realise that people in power were listening to you, and that you were going to be able to effect change?

 

SAXON:

Yeah, absolutely. So, when the New South Wales Law Reform Commission released their final report, they didn't end up recommending ‘affirmative consent’. And that was really, really disappointing to us. They had a lot of, you know, great things to say in their report, but they just didn't go that step far enough. 

 

And I thought at the time, you know, if my trial was run today under these recommendations from the Law Reform Commission, it would likely have the exact same outcome. So, what was all of that work for? 

 

But, Rosaura, Dr. Rachel Burge and myself and members of society met with the New South Wales Attorney-General Mark Speakman, and put our concerns to him, and so did many other groups and advocates; put their concerns about what not legislating for ‘affirmative consent’ would mean after this, you know, very long review that we had, and...they listened.
 

Archival tape -- NSW Attorney-General Mark Speakman:
For decades, there have been calls for reform in NSW, in Australia, and indeed across the world, for how we handle sexual violence complaints…

 

SAXON:

They, you know, called me. It must have been 5.30 on a Monday night, and I was not prepared for it at all.

Archival tape -- NSW Attorney-General Mark Speakman:

It’s very simple. Consent has to be communicated by the other party saying or doing something.

 

SAXON:

They listened to our… our concerns, they heard our points, and they decided to legislate for affirmative consent in New South Wales.

Archival tape -- NSW Attorney-General Mark Speakman:

Today I announce that the NSW government is adopting, or adopting in principle, all 44 recommendations of the Law Reform Commission, 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…

 

SAXON:

That was such a massive win. And it was a really amazing feeling to think, all of this work that we had all put in, all these experts, all these advocates, all these survivors had put in, was actually going to make a difference.

 

RUBY:

We'll be back in a moment. 

 

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RUBY:

Saxon, the NSW Parliament just passed new laws to implement affirmative consent. Now that has happened, can you tell me more about them - what exactly will change?

 

SAXON:

So, the laws they’re debating 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 that consent. And that's really the crux of the affirmative consent model - that you can't rely on this, you know, mistaken belief... ‘Oh, I thought that she was consenting based on absolutely no evidence’...

 

RUBY:

Mm. And so even though these laws have passed in NSW, they did face opposition. So, what was holding back these reforms? Where was the opposition coming from? And what do you make of the arguments against the affirmative consent model? 

 

SAXON:

There are, you know, individuals who are against these laws, and I think chief among them in New South Wales was the New South Wales Bar Association. They were firmly opposed to reforming these laws. And and when the attorney general announced that they would be reformed, they put out a release that said that the reforms were fundamentally misguided, and could criminalise consensual sexual relations. 

 

And that's something you hear a lot is that this will criminalise regular people having consensual sex. Which I think is, you know, as an argument, I don't think it's very strong. Because, you know, consensual sexual relations are not what people are going to the police to report. 

 

If you're engaging in consensual sexual relations, there is no reason that the law would ever get involved. You know... we are not talking about two people enjoying themselves together. That's not what this law is dealing with. 

 

And I think, you know, it's like there's this idea that there's going to be checks... police checks at your door, you know, every night; ‘did you engage in affirmative consent last night?’...That's not how this law works. In fact, it's not how any of them work. This is to deal with crimes.

RUBY:

And we’ve spoken about NSW - but what about the rest of the country, Saxon? Is affirmative consent something that is likely to be adopted elsewhere?

 

SAXON:

So Victoria just last week announced that they would also be amending their laws to an affirmative consent model.
 

Archival tape -- ABC Radio Reporter: 

Three states are now set to have Affirmative Consent laws applied to cases of sexual assault after the Victorian announced new reforms...

SAXON:

That was in response to recommendations from their own Victorian Law Reform Commission report titled: Justice System Response to Sexual Offences.

Archival tape -- ABC Radio Reporter: 

The Law Institute of Victoria, which represents the legal fraternity, acknowledges change is needed to improve outcomes for victims...

SAXON:

They also said they would include explicit laws against the removal of a condom during sex without the other person's knowledge, which is known as stealthing, and that they would develop a 10 year whole of government strategy to address sexual violence. So, we'll wait to see what the legislation itself looks like, but we are cautiously optimistic about it. I think they were very clear in their messaging, the Victorian Attorney-General said to victim-survivors: “we hear you and the system must change. This is too important not to act.”
 

Archival tape -- Victorian Attorney-General Jaclyn Symes: 

What I really like about this model is that it will take the onus off a victim in telling their story about being questioned about ‘well what did you do in order to ensure that the perpetrator knew whether you are consenting or not?’ This will flip it. This means that the questions will be on the perpetrator…what did you do?

 

SAXON:

Tasmania has had affirmative consent laws for many years, so they've been leading the way for a long time. But, as for other states around Australia, unfortunately, most of them are stuck in the past. 

 

Unfortunately, the other states around Australia do not have affirmative consent laws. So hopefully then you know, the movement we're seeing right now in New South Wales and in Victoria will help lead the way to pull the other states, you know, into the present. 

 

RUBY:

And Saxon it's been, I think about three years since your legal battle ended, and about eight years since that night at Kings Cross. And I wonder, in that time, how you reflect on the decisions that you've made - the decision to go public, to begin this journey and advocacy... and the cost of all of that. 

 

SAXON:

I think it does change from day to day, you know, depending on whether we've had a win or we've had a loss. I sort of wonder whether it would have been worth it this whole journey. I think, for the majority of the time I land that it has been worth it, absolutely every single second because we have changed so many things; not just this law, but we've changed how people think about sex. We've changed how people talk about affirmative consent.

The New South Wales Legislative Assembly said that these laws were ‘common sense laws’...like, I can't imagine hearing that you know, however many years ago.

So, my personal journey has absolutely been worth it.

But I think I will be absolutely solid on that thought every single day if we can...if we can end, sexual violence.

RUBY:

Saxon, thank you so much for your time and for talking to me about all of this today.

 

SAXON:

Thanks for having me.

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[Theme Music Starts]

RUBY:

Also in the news,

 

The Northern Territory recorded three new cases of Covid-19 on Tuesday, including one infant from Robinson River.

 

The Australian Defence Force has been brought in to support a coronavirus testing blitz in Katherine and surrounding communities. 

 

There are currently 40 active recorded cases of Covid-19 in the territory.

 

And in New South Wales, an environmental activist has been sentenced to 12 months in jail for stopping a coal train in the Hunter region.

 

Blockade Australia, the group organising the protests, said it was facing “extreme measures” by authorities to shut down its campaigns, after the NSW police formed a new strike force targeting illegal climate protests.

 

Since the start of this month, at least 28 people have been arrested in relation to direct action taken by the activist group.

 

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

Saxon Mullins is the director of advocacy at Rape and Sexual Assault Research and Advocacy.