Daily BulletinHoliday Centre

The Conversation

  • Written by Rachael Burgin, Research associate, Monash University

The NSW Law Reform Commission will hand down its final recommendations for a reformed definition of sexual consent in the new year, following draft proposals in October.

The commission’s inquiry is largely the result of the advocacy of Saxon Mullins, who was let down by the legal system when the man accused of raping her, Luke Lazarus, was acquitted in a judge-only trial. A jury had earlier convicted him.

The point of legal contention was whether Lazarus believed on “reasonable grounds” Mullins was consenting. The jury in the first trial ruled Lazarus had no grounds for believing Mullins consented, therefore finding him guilty.

But following an appeal, judge Robyn Tupman ruled Lazarus did reasonably believe he had consent, referring, among other details, to Mullins’ supposed failure to do anything “physical to prevent the sexual intercourse from continuing”.

Read more: Yes means yes: moving to a different model of consent for sexual interactions

Much of the debate since the beginning of the review has focused on whether the law in NSW should adopt an “affirmative” approach to sexual consent. With a legal model of affirmative consent, Mullins’ case might have had a different outcome.

Affirmative consent is broadly supported in the community, and adopting it would bring the law in NSW more in line with the current approaches in jurisdictions like Victoria and Tasmania.

But, how this works as law in a rape trial is less clear. The NSW commission should take note that the wording of Victoria’s legislation in particular offers limited protection in court.

What is affirmative consent?

The model of affirmative consent is based on the idea all people have the right to have sex or not have sex. A person who wants to have sex with another person must actively confirm, by “taking steps”, that the other person also wants to have sex.

They could ascertain this via verbal agreement or active participation, as opposed to passive submission. The question of whether an alleged perpetrator had reasonable grounds to believe the complainant was consenting could be answered more clearly if these steps were an expectation of every sexual encounter.

Australian law doesn't go far enough to legislate affirmative consent. NSW now has a chance to get it right Affirmative consent means taking active steps to confirm the other person wants to have sex. From shutterstock.com

In conducting its review into consent law in NSW, the commission looked to the way consent law operates in other states.

It gave the highest praise to approaches in Victoria and Tasmania, despite a lack of empirical evidence to show how these laws are working in practice.

Victoria

Myself and colleagues looked at 15 rape trials from the County Court of Victoria between 2008 and 2015 to explore how affirmative consent translates into legal practice.

Our findings raise concerns about whether the law in Victoria is able to change the way “rape myths” – falsities which blame women for being raped and excuse men’s predatory behaviour – play out in trials.

Despite using language that reflects an affirmative approach to consent, the way Victoria’s law has been written fails to implement the standard in practice.

The Victorian Crimes Act defines consent as “free agreement”. A person who does not “reasonably believe” the other person consents should be found guilty of rape.

It’s not, however, until the act defines what a reasonable belief means that there is specific reference to the “steps taken” by the initiator of sex, for example, asking the other person if they want to have sex. The act says:

  1. whether or not a person reasonably believes that another person is consenting to an act depends on the circumstances
  2. without limiting subsection (1), the circumstances include any steps that the person has taken to find out whether the other person consents…

The cumulative impact of these two sections of the law is that a person seeking sex does not need to take any steps to make sure the other person actually wants to have sex.

Further, there is no test of reasonableness of the steps themselves. So, if a person took unreasonable steps – for example, claiming they thought about consent, but did not do or say anything to make sure the other person was consenting – this could constitute a “step” in the eyes of the law. This effectively renders the premise of affirmative consent redundant.

Tasmania

In Tasmania, a belief in consent is not honest nor reasonable if the accused “did not take reasonable steps in the circumstances” to ensure the other person was consenting.

This approach avoids the two biggest pitfalls of the Victorian law, because first, steps are mandatory, and second, those steps must be reasonable steps. Under Tasmanian law the “steps” need to be more proactive to be considered reasonable. In a Tasmanian court, a person will have to identify actions they took to make sure they had consent.

The Tasmanian approach embeds affirmative consent into law, a feat not achieved in Victoria. So in delivering its final recommendations, the NSW commission would be best placed to take cues from Tasmania.

Australian law doesn't go far enough to legislate affirmative consent. NSW now has a chance to get it right Affirmative consent is a good thing. But the way the legislation is worded is important. From shutterstock.com

A promising proposal

In its draft proposals, the commission suggested these laws sit under a set of “interpretive principles” to make them easier for jurors to apply.

These principles reflect the core values of the affirmative approach to sexual consent. They state: “sexual activity should involve ongoing and mutual communication, decision-making and free and voluntary agreement between the persons participating in the sexual activity.”

The inclusion of these principles will be important in making affirmative consent law in NSW.

Read more: Making sexual consent matter: one-off courses are unlikely to help

Further, the commission has provided some clarity around the vague idea of “taking steps”, a key concern raised in earlier submissions. The draft proposals suggest defining steps as “whether the accused person said or did anything to ascertain if the other person consented”.

This language means that, unlike the ruling of the NSW Court of Appeal in Mullins’ case, a “step” will constitute more than just the accused “thinking” about consent. Instead, the commission frames a “step” as a physical act, achieved through actions and words.

Yet, the draft proposals have not responded to the ongoing concerns with Victorian law. They don’t lend support to mandating that the accused demonstrate to the court that they took steps to ensure they had consent. It’s important this be addressed in the final recommendations, or NSW will not be moving towards a model of affirmative consent.

Authors: Rachael Burgin, Research associate, Monash University

Read more http://theconversation.com/australian-law-doesnt-go-far-enough-to-legislate-affirmative-consent-nsw-now-has-a-chance-to-get-it-right-125719

INTERWEBS DIGITAL AGENCY

The Conversation

Politics

Closing the Gap Statement to Parliament

Mr Speaker, when we meet in this place, we are on Ngunnawal country. I give my thanks and pay my respects to our Ngunnawal elders, past, present and importantly emerging for our future. I honour...

Scott Morrison - avatar Scott Morrison

Prime Minister Interview with Alan Jones

ALAN JONES: Prime Minister, good morning.    PRIME MINISTER: Good morning, Alan.    JONES: I was just thinking last night when we're going to talk to you today, you must feel as though you've ...

News Company - avatar News Company

Prime Minister Bridget McKenzie press conference

PRIME MINISTER: Good afternoon everybody. The good news is that the Qantas flight is on its way to Wuhan and I want to thank everybody for their cooperation, particularly the Chinese Government as...

Scott Morrison - avatar Scott Morrison

Business News

Choosing the Right Coworking Space For Your Business

As the capital of Victoria in Australia, Melbourne is inhabited by millions of people and is known as one of the most liveable cities in the world. The latter is due to the city’s diverse community...

Sarah Williams - avatar Sarah Williams

What Should You Expect from A Carpentry Apprenticeship?

Those wanting to pursue a career in woodwork, whether it be to make furniture, construct buildings or repair existing wooden structures, will have to first commence a carpentry apprenticeship. This ...

News Company - avatar News Company

4 Tips To Choosing A Reliable SEO Company For Your Digital Marketing Agency

Working with a digital marketing agency Perth is the best bet in ensuring that your business is promoted well in the online space. If you are an app developer Perth, you may have to work closely wit...

News Company - avatar News Company

Travel

Travelling With Pets? Here Is What You Should Know

Only a pet parent can understand the dilemma one experiences while planning a vacation. Do you leave your pets at home?  Will you get a pet sitter or someone to take care of them while you are away?...

News Company - avatar News Company

How to Be a Smart Frugal Traveller

You are looking through Instagram, watching story after story of your followers overseas at a beach in Santorini, walking through the piazza in Italy, and eating a baguette in front of the Eiffel ...

News Company - avatar News Company

HOW TO PREPARE FOR YOUR GRADUATION TRIP

Graduation is the stage of life when a student receives the rewards of hard work of years. It must have taken sleepless nights and tiring days to achieve the task. Now, as you have received your cov...

News Company - avatar News Company

ShowPo