Australian law doesn't go far enough to legislate affirmative consent. NSW now has a chance to get it right

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.

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.

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.

Rachael Burgin does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.