Obtain Explicit Consent to Sex, or You Are a Rapist

The New South Wales Attorney General has asked for an urgent review of NSW sexual consent laws after the story of Saxon Mullins made media headlines this week.

Ms Mullins’ case involved a five-year long legal battle involving two high profile trials, after she accused Luke Lazarus of sexually assaulting her in an isolated alley way behind a Kings Cross nightclub in 2013.

The prosecutions

The court repeatedly heard testimony from Ms Mullins that she did not affirmatively consent to the sexual intercourse, but it was ultimately determined that the prosecution failed to prove beyond reasonable that Mr Lazarus knew, or was reckless to the fact that, the complainant did not consent, as is required by the law.

Mr Lazarus spent 11 months behind bars before his conviction was overturned.

The appeals court determined that the evidence was incapable of excluding a reasonable possibility that Mr Lazarus had ‘reasonable belief’ that Ms Mullins was consenting to the anal intercourse.

After reviewing that decision, the DPP came to the view that the court neglected to take into account whether Lazarus had taken affirmative steps to ascertain consent. Despite this, the DPP also decided not to proceed with a further trial, as it was entitled to do in the circumstances.

Ms Mullins has always maintained that she chose to follow “a demand … [f]rom someone I had never met before. In a dark alleyway. Alone. And I was scared”, but that her decision to follow Mr Lazarus to the alley way and to remain silent was because she was in fear.

Government position

Attorney-General Mark Speakman says there is a “systemic problem” with the way sexual assault allegations are received and dealt with.

“There is a reluctance by complainants to come forward. They’ve already been traumatised once, and they have to go through this re-traumatisation yet again.”

In relation to the Mullins case, Mr Speakman expressed concern that “someone who has not consented can go through four court cases and not get a final resolution for the complaint.”

He has referred the current laws relating to consent in NSW sexual assault cases to the state’s Law Reform Commission. The review will examine Mullin’s case in detail, along with other allegations of sexual assault. It will also compare laws in other countries and other Australian states, such as Victoria and Tasmania, which have some of the toughest consent laws in the country.

Definition of consent in NSW

Under section 61HA (now superseded by section 61HE) of the Crimes Act, consent is considered to have been given in the context of sexual assault cases where a person “freely and voluntarily agrees to the sexual intercourse.”

The first requirement to establish a lack of consent is that the complainant did not consent.

The second is that the defendant knew the complainant did not consent.

This second requirement is established where the prosecution proves that the defendant:

• knew the complainant was not consenting, or
• was reckless as to whether the complainant was consenting, or
• had no reasonable grounds to believe the complainant was consenting.

In making such a finding, the court must have regard to all of the circumstances of the case including any steps taken by the defendant to ascertain whether the complainant was consenting, but it must not consider any self-induced intoxication by the defendant.

In addition to this, the current law provides that a person cannot consent to sexual intercourse where he or she:

• does not have the capacity to consent due to their age or cognitive incapacity, or
• does not have the opportunity to consent as they are unconscious or asleep, or
• consents because of threats of force or terror, or
• is unlawfully detained.

Furthermore, the current law provides that a person does not consent if under a mistaken belief that:

• he or she is married to the defendant, or
• that the sexual intercourse is for health or hygienic purposes.

The law also presently provides that the grounds on which it may be established that a complainant does not consent to sexual intercourse include where he or she:

• was substantially affected by drugs or alcohol,
• was subjected to intimidatory or coercive conduct, or another threat, that did not involve force,
• was taken advantage of through an abuse of authority or trust.

The law also makes it explicitly clear that a complainant who does not offer physical resistance is not necessarily consenting.

These laws were introduced in 2007 in response to a sustained campaign by mainstream media outlets including radio broadcaster 2GB and the Daily Telegraph newspaper to get tough on alleged sexual offenders.

An explicit ‘yes’ means yes, or else it’s a no

However, the government wants the law to be changed once again to make it easier to convict those who are accused of sexual assault.

NSW Minister for the Prevention of Domestic Violence and Sexual Assault, Pru Goward, wants the change to reflect that, “You must explicitly ask for permission to have sex and if it’s not an enthusiastic ‘yes’ then it’s a ‘no’,”.

The minister has also called for more discussion in schools and other appropriate social education settings to ensure that men and women understand what explicit consent means

With reports of sexual assault on the rise in Sydney, despite an overall fall in crime figures, the NSW government is also due to release its Sexual Assault Strategy which will provide a framework for responding to and preventing sexual assault.

The strategy is expected to focus on six key areas: prevention, education, supporting complainants, holding perpetrators to account, responding to children and young people who have engaged in harmful sexual conduct towards others, and improving the system as a whole.