Review of Consent Laws: An Update

As I’ve written previously (click here), the laws surrounding sexual consent in NSW have a patchy grey area. In NSW, when someone is on trial for sexual assault, the crown has to prove beyond a reasonable doubt that the complainant did not consent.

NSW laws are structured in a way that puts the onus of proof on the victim: the victim must prove they did not give consent. The best practice example of consent laws in Australia is said to be either Tasmania or Victoria, wherein (according to Anthony Whealy QC, a former Justice of the Supreme Court of NSW):

“the crown must prove that the complainant gave free agreement to sexual intercourse taking place ... and the judge is asked to direct the jury that if the complaint said or did nothing at the time of the sexual intercourse, that means she did not give her free agreement.”

As I’ve stated previously, this change switches the focus from the complainant to the accused. In this case, instead of focusing on the ways the complainant didn’t consent, the trial can focus on the ways the accused thought they had free agreement to the sexual intercourse taking place. The burden of proof, in a way, shifts from complainant to accused.

After Luke Lazarus was acquitted on retrial, NSW Attorney General Mark Speakman asked the Law Reform Commission to look at the whole question of consent in sexual assault trials. This high-profile case shone light onto these laws and how they can fail victims of sexual assault.

However, as Michaela Whitbourn has reported for the Sydney Morning Herald (link here), the NSW Bar Association (and also The NSW Law Society) has said in a submission to the Law Reform Commission that NSW should not change our laws to correlate with states like Tasmania. You can read their submission here. An excerpt of the NSW Bar Association submission is below:

“Some support has been expressed for a Tasmanian provision which states that “a person does not freely agree to an act if the person … does not say or do anything to communicate consent”. In the view of the Association, this kind of provision illustrates some of the dangers in this area. First, it confuses the question of “free agreement” with the issue of communication of consent. There may be consent, indeed there may be “free agreement”, whether or not that state of mind is communicated and regardless of how it is communicated. Second, it appears that the real purpose behind this provision is a focus on the state of mind of the accused, not the state of mind of the complainant. The goal may be to prevent an accused from avoiding criminal responsibility where consent has not been communicated, that is, to impose a duty to inquire regarding consent where it has not been communicated in some way. It is not appropriate to seek to advance that goal by means of a definition of consent that may have the consequence that what is real consent is defined not to be consent. Third, the concept of communicating consent is nebulous. Consent is communicated in different ways and there will be a comparable lack of uniformity in the way that what is communicated will be understood. Signals about consent, or lack of consent, are susceptible to misinterpretation. Such a provision should not be adopted in NSW.” (emphasis mine)

Sex involves at least two people. As a society, we’ve decided both parties must be of legal age and must consent to sexual encounters. If you asked an average person to define a sexual encounter where one of the parties didn’t consent to sexual intercourse, they would probably define this as rape/sexual assault.

This submission reads to me (and forgive me, I am not a lawyer) that there may be free agreement without verbal or physical cues, and I do agree with that. However, if the law were changed this free agreement would still exist, but there would be an added safeguard of parties having to verbally check in (or otherwise) to ensure that the free agreement existed.

Why do I think we need that safeguard? Because we know most people freeze in a sexual assault, and they do not fight back.

Stat according to victimfocus.org.uk

Here is more data to back that up, from a resource produced by the Australian Institute of Family Studies on behalf of Victoria Police. (Link.)

In the section of the report, focused on debunking myths about sexual crime and resistance:

• In a study of 317 rape reports in Minnesota, 81% of victims did not actively resist at some point… (Carr et al., 2014)
• Victims may be more likely to freeze and cooperate rather than fight off the offender (Gerber, Corman, & Suresh, 2009; Tidmarsh et al., 2012). 
• Women with previous sexual victimisation histories tend to engage in less direct verbal resistance, such as turning cold or freezing during an offence (Gidycz et al., 2008).

If, as in the Lazarus trial, there was reasonable expectation of consent because the victim was in a frozen state – then the law will fail victims of sexual assault again in future. Because most victims of sexual assault do what Mullins did: they freeze. And the way this law is worded predominantly disadvantages women, because victims of sexual assault are predominantly women. This law advantages men, because men are predominantly the perpetrators of sexual violence.

The Sydney Morning Herald reports (link) the NSW Police Association said: “the criminal justice system fails survivors of sexual assault” and consent laws should be amended to require people to “actively ensure” their partners were consenting to sex.”

Is it really too much to ask for sexual partners to check in with one another? The police don’t seem to think so, and I’m with them on this one.

By: Tee Linden