This was published 2 years ago
Opinion
Sexual assent law is a triumph for Saxon, common sense and common decency
By Rachael Burgin
When new sexual consent laws came into effect in NSW on Wednesday, it was a triumph for Saxon Mullins. Since her alleged sexual assault and subsequent battle with the criminal justice system, Saxon and I have been campaigning for these reforms.
Attorney-General Mark Speakman is right when he calls the changes “commonsense consent reforms”. That’s because they are concerned with clarifying the law and making it easier for juries to understand and apply in sexual assault trials.
Attorney General Mark Speakman and Saxon Mullins. Credit: Peter Rae
Importantly, the changes address the problem of “rape myths”. These are myths about sexual violence that are widely held, despite their inaccuracy. These myths are being challenged through the introduction of an “affirmative consent” standard in the law.
That simply means consent must be actively communicated – through actions or words – by all people involved in a sexual act. You can’t assume that someone wants to have sex, just because they don’t refuse it or don’t fight off an attack. All people must say or do something that communicates they are consenting.
Affirmative consent also requires that it is given at the time of the sexual act and establishes that consent to one sexual act isn’t consent to another. So, you can’t assume that someone’s behaviour hours or days before the act means they are consenting. You can’t assume that because someone consented to sex on one day, they will on the next.
These changes are important for many reasons, but they do not change what constitutes consensual sex and what crosses into sexual assault. A person who is substantially affected by drugs or alcohol, for example, has always been unable to give consent. The new laws change the language around these “intoxication provisions” but the essence of them remains the same: a drunk person can’t consent.
The laws also make changes that relate to the accused person’s “state of mind” or the mental element of the offence. In NSW, there are three possible ways that this mental element can be met. First, if the accused knew the other person was not consenting. Second, the accused person was reckless about whether or not the other person was consenting. For example, they thought there was a chance the other person didn’t consent but continued with the act anyway. Third, the mental element is met if the accused person’s belief in consent was not reasonable in the circumstances.
It is this third factor that has been most substantially reformed by the recent changes. Under the new law, a person accused of a sexual assault who is arguing that they had a reasonable belief in consent must show they “took steps” to ascertain consent. In other words, they must show they said or did something to find out whether the other person was consenting to the sexual act. If they didn’t take any steps, or didn’t do or say anything to make sure they had consent, then their belief in consent is not reasonable. This change is in line with community expectations. The community expects that consent is a choice, freely made and actively communicated.
The law reforms are not the end of the story, though. If we envision a world free from sexual violence, then we must also envision a world where every person has access to comprehensive relationship and sexuality education – from the cradle to the grave. The NSW government has released a campaign targeting young people alongside these legal reforms. The Make No Doubt campaign is an important step in educating everyone about what consent looks like and arming young people with the tools to have safe conversations about sex and consent.
While this law reform is a good start – I don’t think it goes far enough. Victims who report their experiences to police continue to say they felt like they weren’t believed, or that they were blamed for their own rape. Most cases reported don’t result in a conviction. This does not mean we do not have a problem with sexual violence in this country. We do. But we do not have a criminal justice system capable of responding to sexual violence, nor do we have mechanisms in place to prevent sexual violence before it occurs.
I am pleased to see these new laws in NSW, and I believe they are a step towards improving the justice systems response. But they are no silver bullet – laws alone will not reduce the trauma of sexual violence for survivors, and it can only go some way to improving experiences in the criminal justice system. We need increased investment into innovative responses to sexual violence, and funding to sexual assault services who can support survivors in recovery.
Meanwhile, if you want to have sex with someone, you have to make sure they want to too. It’s that simple.
Dr Rachael Burgin is a lecturer in criminal justice and criminology at Swinburne Law School. She is executive director of RASARA (Rape and Sexual Assault Research and Advocacy).
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