NSW sexual consent law must be changed

October 19, 2018
University students protest rape culture.

Women’s and legal groups are pushing for the New South Wales state government to amend the sexual consent law to make it clear that consent must be active and voluntary.

Section 61HA of the Crimes Act 1900 (NSW) is convoluted and open to interpretation, as in a case in which a man was acquitted of raping Saxon Mullins because the court could not find that the victim did not consent revealed this year.

After Mullins went public with her ordeal, the NSW Coalition government asked the NSW Law Reform Commission to review the state’s consent laws in May.

While the commission’s report is yet to be made public, preliminary submissions from women’s and legal groups argue NSW needs to bring the antiquated consent provisions in the Crimes Act into line with Victoria and Tasmania, where consent has been redefined as needing to be active and voluntary.

Mullins case

Luke Lazarus was acquitted last year of raping Mullins in 2013. Mullins told ABC’s Four Corners in May that she was coerced. She also said that she had drunk a lot of alcohol that night.

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 claims he thought she was consenting.

Mullins told Four Corners she repeatedly told Lazarus when they were in a Kings Cross laneway, outside a pub, that she wanted to go back inside to her friend. Mullins said: “And he was like, ‘No, it’s fine’, and I went to move away and he kind of pulled me back and pulled my stockings and my underwear down.

“So, I pulled them back up and I said, ‘No, I really have to go now’.

“He said, ‘Put your fucking hands on the wall’. And ... so I did.”

Mullins has been asked many times since why she “acquiesced”. She says she just froze.

Psychologists describe this behaviour as a victim’s defence strategy. Women being sexually assaulted will try to get away, but there will come a point where they feel trapped and that, if they keep fighting, they risk being seriously hurt or killed.

Psychologist Melissa Podmore told SBS: “When they freeze or even cooperate, it’s not because they’ve colluded with the attacker, it’s because they’re going into this brilliant defence strategy that keeps them alive”.

Prevalence of sexual assault

The #MeToo movement has helped to highlight the prevalence of sexual harassment and assault.

The United Nations says Australia has one of the highest rates of reported sexual assault in the world, with the rate of assault at almost 92 people per 100,000 of the population. This is significant because we know that sexual assaults are still underreported.

The number of sexual assault victims recorded by police rose by 8% across Australia from 23,040 victims in 2016 to 24,957 victims last year.

In NSW, there was a 5.3% rise in the number of sexual assaults in the five years to December last year, but less than one in five victims report their assault to police.

The Women’s Legal Service (WLS) identifies a range of sexual offences that constitute sexual assault, including indecent assault, acts of indecency, sexual assault and aggravated sexual assault.

WLS defines sexual consent as agreeing to something freely: this means without pressure, force, threats, lies or deceit, excessive drug or alcohol intoxication, or other cognitive impairment.

A person is deemed to have the capacity to consent if they: are 16 or older; are awake and conscious; are not over-intoxicated by drugs or alcohol; do not have a severe cognitive impairment; and, importantly, want to have sex or sexual contact.

The person also has the right to withdraw consent at any time.

Unless these circumstances are met, consent is not given.

This includes when someone cannot legally consent, when they are careless about establishing consent, and when a reasonable person would not agree that consent was given (for example, if someone is asleep).

Importantly, it says, silence does not mean yes.

Then-NSW Greens MP (now senator) Mehreen Faruqi argued in her submission to the Law Reform Commission that the consent section of the law had to be strengthened.

“Sexual consent should be redefined as active, positive and voluntary”, she said. “The law must make it clear that a lack of protest or resistance does not equal consent.

“In addition, [it must be made clear that] consent can be revoked at any time during sexual activity, and a previous or ongoing sexual or intimate relationship does not stipulate current consent.”

Social attitudes

Faruqi said we not only need to change legislation, but also social attitudes “to restore confidence in the justice system, so more victims of sexual assault feel confident to come forward and report the crime”.

The University of NSW Women’s Collective argued in its submission that underlying systemic issues make it difficult for people to report sexual assault. It supports changes to ensure affirmative consent is given.

It also suggested a range of other reforms including: free high-quality specialist counselling specifically for victim-survivors; funding for educational and awareness-raising programs in multiple languages to de-stigmatise shame surrounding victim-survivors; and specific sensitivity training for police and special courts to deal with sexual assault matters.

It also wants mandatory minimum sentences with a requirement of rehabilitation focused on consent education.

The Community Legal Centres NSW’s recommendations echo these, and call for primary and secondary schools to provide comprehensive, evidence-based programs on consent, communication, sexual assault and underlying cultural factors that lead to sexual violence.

The Minister for the Prevention of Domestic Violence and Sexual Assault Pru Goward announced in early July she was allocating $200 million over the next four years to schools for education, and a further $1 million on an advertisement campaign on sexual consent.

The campaign involves signs and beer coasters splashed with messages like “No means no” and “Silence is not yes” in pubs and bars.

Faruqi and others have suggested it could be better targeted, moving away from making the victim responsible for actively showing resistance instead of reinforcing the wrong message, namely that consent is assumed unless it is protested.

Conservative media columnists such as Joe Hildebrand are outraged, saying that to make consent affirmative and ensure people can change their minds will muddy the waters and, potentially, make most men rapists.

But for most people, the idea of practising consent is not hard to understand or practice. For the Hildebrands of the world, it can only get easier the more it is talked about.

Law reform

Meanwhile, NSW is lagging behind other states with its confusing section 61HA, which is allowing rapists off scot-free.

The Law Reform Commission has yet to table its report. But some precedents have been set.

Victoria changed its law in 1991 and Tasmania in 2004: they require active, affirmative and communicative consent, meaning a person does not agree to an act if they do not “say or do anything to communicate consent”.

This simply means that a failure to communicate lack of consent cannot be used as evidence of agreement. This would have helped Saxon Mullins.

As Faruqi noted: “When a society does not acknowledge the prevalence of sexual violence, or normalises its existence, it creates a culture where sexual violence could be considered acceptable.”

And this, in the 21st century, is unacceptable.

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