On 25 May 2021, the NSW Attorney General and Minister for the Prevention of Domestic Violence, Mr Mark Speakman, announced reform to sexual consent laws.
Why are sexual consent laws being reformed?
There have been two driving forces behind these reforms.
1. Saxon Mullins and the Lazarus case
In 2013, Saxon Mullins alleged that she was sexually assaulted by Luke Lazarus in an alleyway behind a nightclub in Kings Cross, Sydney. Lazarus pleaded not guilty. He was convicted of sexually assaulting Saxon Mullins and was sentenced to five years imprisonment with a non- parole period of three years. However, Lazarus’ conviction was quashed after he served 10 months of his sentence.
The court ordered that he be re-tried. The re-trial proceeded before Judge Tupman, and Lazarus was found not guilty. Her Honour held that while Mullins was not consenting to sexual intercourse with Lazarus, given that she did not say “stop” or “no”, nor take any physical action to move away, Lazarus had reasonable grounds to believe she was consenting. This meant that while it was accepted Mullins was raped by Lazarus, Lazarus had reasonable grounds to believe she was consenting and therefore was not guilty.
In 2017, the Crown appealed against Judge Tupman’s finding of not guilty. While the Court of Criminal Appeal accepted that one of the grounds of appeal was made out, the court held that it would be oppressive to order Lazarus to undergo a third trial. As such, the Crown appeal was formally dismissed.
Lazarus’ acquittal led to community condemnation of NSW consent laws.
2. Recommendations made by the NSW Law Reform Commission
In 2018, the Attorney-General asked the Law Reform Commission (LRC) to review consent laws in NSW. After extensive community and stakeholder consultation, the LRC made 44 recommendations. The government has since announced that it supports all 44 of the LRC’s recommendations.
The reform of sexual consent laws in NSW is a response to the injustice experienced by Saxon Mullins and the recommendations made by the LRC.
What are the proposed new sexual consent laws?
The new sexual consent laws are yet to be enacted. However, the Attorney-General has indicated the effect of the new laws will be that:
- A person does not consent to sexual activity unless they said or did something to communicate consent, and
- An accused person’s belief in consent will not be reasonable in the circumstances unless they said or did something to ascertain consent.
This is known as an affirmative model of consent. It essentially means that consent needs to be verbally or physically communicated. A person’s silence or lack of resistance to sexual intercourse will not amount to reasonable grounds to believe that he or she is consenting – effectively expunging the defence upon which Lazarus relied.
Mr Speakman stated that “No one should assume someone is saying ‘yes’ just because they don’t say ‘no’ or don’t resist physically. Steps should be taken to make sure all parties are consenting.”
What will be the impact of the new consent laws?
The key effect of an affirmative model of consent is that it shifts the focus in a sexual assault trial from the behaviour of the complainant to the actions of the defendant. Currently, the court considers whether the complainant said “no” or “stop”, and whether he or she moved away from the defendant or physically tried to stop the sexual intercourse.
However, under an affirmative model of consent, the focus will be on the actions of the defendant. The court will consider whether the defendant took reasonable steps to ascertain whether the complainant was consenting. It can be expected that determining what conduct constitutes “reasonable steps” will be a legal and factual minefield in many sexual assault trials to come.
The new reforms will also affirm that consent to one sexual act does not carry over to other sexual acts. It has been noted that this reform, when coupled with an affirmative consent model, may be problematic. Stephen Odgers SC, a Sydney barrister, noted it would require each person engaging in sexual activity to take reasonable steps to ensure that the other person is consenting to “each and every sexual act”. A foreseeable difficulty will be determining when one sexual act ends and another begins, and determining what “reasonable steps” to ascertain consent are in such fluid circumstances.
The NSW Bar Association has also expressed concern that “the proposals … in relation to consent in sexual assault matters are likely to result in significant injustice”. The Bar Association noted that consensual sexual intercourse frequently occurs without words being said, particularly in long term committed relationships and marriages. The proposed reforms appear to consider such instances of sexual activity non-consensual and therefore criminal. Persons in long term relationships will need to obtain consent prior to engaging in sexual acts so as not to face allegations of sexual assault.
It is noted that an affirmative consent model was introduced in Tasmania as long ago as 2004 and has operated without significant controversy. Whether NSW has the same success will largely depend on the drafting of the new laws and their discretionary application by police.