Antiquated NSW consent laws need reform

March 4, 2021
Photo: Pixabay

After sharing the trauma of being sexually assaulted, Chantal Contos empowered thousands of other women to come forward with their experiences. Her Teach Us Consent website exposes how widespread rape culture is in schools.

Contos, 23, started a petition calling for better consent education. Within days, more than 4000 allegations of sexual assault had been sent to her. She published 1500 allegations on the petition “For Consent To Be Included In Australian Schools' Sex Education Earlier”, arguing that “schoolboys are so poorly educated about consent they barely even know what it is”.

This lack of education is not just reflected in schools; it is everywhere in workplaces, homes and parliament, as evidenced by Brittany Higgins’ testimony about her rape.

Lack of education and knowledge of consent is also reflected in the law.

In New South Wales, the laws governing consent have still not been amended despite widespread acknowledgment that they are inadequate.

Jenny Leong, NSW Greens spokesperson for women’s rights, has called for urgent law reform. She sent a letter to NSW Attorney General Mark Speakman on February 22 saying that “women are suffering as a direct result of the current insufficiencies within our laws”.

She also called for women’s organisations and the LGBTI community to be consulted “to ensure that those communities, particularly trans and gender diverse people, are not adversely impacted”.

The NSW government said in 2018 that reforming the NSW Crimes Act would be a priority that year.

Since then, the Premier abolished the Prevention of Domestic Violence and Sexual Assault portfolio, reallocating the domestic violence part to the attorney general, but dropping sexual asasult.

“There is a major problem with the way that ‘consent’ is defined in the NSW Crimes Act,” Leong said, “making it almost impossible for those who’ve experienced sexual assault to get justice.

“Sexual offences in NSW are significantly under-reported and conviction rates for those offences that do make it to court are staggeringly low.

“There’s been no change to the law and no bill before the Parliament. It would appear that there has been a significant dropping of the ball.”

The government commissioned the Law Reform Commission to look into the state’s consent laws in 2018. More than 150 formal submissions were made and 1800 were submitted in an online survey. The final report was tabled on November 18.

It’s now March and women’s legal groups and victims of sexual violence are still fighting to change a law that currently allows rapists to walk free.

The commission was set up in 2018 after a campaign by Saxon Mullins, who accused Luke Lazarus of raping her in a Kings Cross laneway in 2013 when she was 18.

A jury and a series of judges found that Mullins did not consent to sex. But the legal sticking point was whether Lazarus knew she was not consenting. Lazarus claimed he thought she was.

Lazarus was found guilty of sexual assault in 2015 but, was acquitted on appeal in 2017. This is because the antiquated consent provisions — Section 61HA of the Crimes Act 1900 — are also convoluted and open to interpretation. Specifically, the onus is on the person being assaulted to communicate that they do not want to be.

The court eventually ruled it would be “oppressive” for Lazarus to face a third trial and he walked free.

Mullins’ lack of active consent — she said she froze in defence — was not enough to convict Lazarus.

The Law Reform Commission wants the law to recognise that a person does not consent to sex if they “do not do or say anything to communicate consent”.

The commission’s reform recognises the “freeze” response to a traumatic situation like non-consensual sexual activity as “common”. It recommends that a new clause should include a direction stating “People may respond to non-consensual sexual activity in different ways, including by freezing and not saying or doing anything”.

Consent laws don’t need to be confusing. Mullins put it simply: “Enthusiastic consent is really easy to determine, and I think if you don’t have that, then you’re not good to go.

“If it’s not an enthusiastic ‘Yes’, it’s a ‘No’. That’s it.”

Victoria changed its consent law in 1991 and Tasmania in 2004 to require active, affirmative and communicative consent. It is way past time for NSW to change its laws.

“NSW needs to adopt a communicative model of consent — a model which acknowledges the reality of how sexual assaults actually occur, giving clarity to police, courts and juries and mitigating the risk of their reliance on false and outdated ‘rape myths’ to decide whether or not an assault has taken place,” Leong said.

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