NSW pledges to overhaul antiquated consent laws

May 25, 2021
Saxon Mullins speaks about the need for new consent laws.

NSW Attorney-General Mark Speakman said on May 25 that the state government would reform antiquated consent laws, including introducing a model of affirmative consent.

The NSW Law Reform Commission tabled its review of the consent laws last November and women’s rights groups and the Greens have been pushing for action.

While the new bill is yet to be tabled, Speakman said he supported the commission’s 44 recommendations. He said the definition of consent would change to “something that's given voluntarily and freely by agreement”.

"That it can be withdrawn at any time … consent to one sexual activity is not consent to any other sexual activity and that self-intoxication of the accused is not an excuse for failing to form a reasonable belief,” he told the ABC.

Saxon Mullins from Rape and Sexual Assault Research and Advocacy said that she was pleased that this day had come but that apart from the reforming the law, which was “a significant step”, more focus was needed to ensure “all survivors’ voices are heard and their justice is sought, whatever way that is for them”.

The commission was set up in 2018 after a campaign by 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 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.

It was this assault on Mullins that sparked the commission’s review of the law.

Greens spokesperson and Newtown MPJenny Leong said the decision to update the law was “a tribute to the advocacy, activism and expertise of women, victim-survivors and those who have experienced sexual assault”.

“While the need for this reform is not new, the overwhelming roar of women, particularly young women, disclosing their trauma online, demanding justice on the streets and campaigning for change in society over recent months has added a new momentum to this movement.”

Leong said the Greens would work with advocates and survivors on ensuring that the bill “put the focus squarely on the alleged perpetrator of the sexual assault - not on what the woman did or didn’t do, what the woman did or didn’t wear, nor on what the woman did or didn’t drink”.

She also said the new law needed to be accompanied by funding for education and support services, so that everything is done “to prevent sexual assault from taking place in the first place”.

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