Sexual consent laws: Why New South Wales must be applauded for new legislation

“An enthusiastic yes.” That’s the idea behind new affirmative consent laws passed by the NSW Government this week, which say consent to any sexual activity must be communicated by words or actions not simply assumed. Described as “common sense” laws by the State’s Attorney-General Mark Speakman, the legislation is expected to make sexual assault cases easier to prosecute. Previously, cases where victims had a “freeze response” to attacks — a common physiological response where a victim “freezes” in response to danger — had not always resulted in convictions. The laws are a result of the campaigning from NSW woman and sexual assault survivor Saxon Mullins. The man she calls her rapist had his conviction overturned because even though the court agreed she had not consented they found he had “believed” she was agreeing. There is now a push for similar laws to be introduced across the country, including in WA. It comes amid growing conversations about consent and after the ACT made the specific act of stealthing — removing a condom without the other person’s consent — illegal. Simone McGurk, WA’s Minister for Women’s Interests and Prevention of Family and Domestic Violence, told The Sunday Times she had been working closely with Attorney-General John Quigley to examine which laws can be considered within the the State’s framework. “It is clear that there is growing awareness around the issue of affirmative consent and acts like stealthing. In particular, I acknowledge the advocacy of victim-survivors like sexual assault advocate Saxon Mullins, who have shared their stories to drive change,” she said. “It is essential that victim-survivors feel confident and safe in bringing these matters to the criminal justice system. It is important that any attitudes that blame women for their victimisation do not play a role in justice outcomes.” She said while there were significant differences between the WA Criminal Code and legislation in other jurisdictions, she believed there was a need to look at whether we have effective laws that encourage victims to report what has happened. “I have been working closely with the Attorney-General to examine which laws can be considered within the Western Australian legislative framework,” Ms McGurk said. “This would complement the development of WA’s first strategy to prevent and respond to sexual violence, which will focus on stopping sexual violence before it occurs.” Shadow minister for prevention of family and domestic violence Libby Mettam said if reforms similar to those in NSW were to be introduced in WA, they would likely receive support from both sides of politics. “Absence of consent is at the heart of these sexual offences and its common sense that people do or say something to confirm consent to sexual activity. I firmly believe that any changes to the law that support, empower and strengthen victims be applauded,” she said. “The changes implemented by NSW are progressive and remove any doubt regarding mistaken belief in consent. Should a similar law be proposed here then there is no reason that it should not receive bipartisan support.” ‘It’s just a conversation’ While the NSW laws introduced have faced criticism from the likes of One Nation MP Mark Latham, who accused the Government of “overreaching” into people’s personal lives, the majority say the laws are not complicated and simply support what most people would do anyway — checking a partner wants to have sex before proceeding. “(The laws) sets clearer boundaries for consensual sex, reinforces the basic principle of common decency that consent is a free choice involving mutual and ongoing communication, and reinforces that consent should not be presumed,” Speakman said this week. “Under our reforms, if you want to engage in sexual activity with someone, then you need to do or say something to find out if they want to have sex with you, too.” Mullins said it wasn’t a difficult bar to meet. “It’s not this threshold (people) have to meet, it’s just having a conversation with someone that you want to engage in an act with and checking that they want to as well,” she said. Mullins, who publicly shared her story with ABC’s Four Corners in 2018 waiving her right to anonymity, was sexually assaulted when she was just 18 during a night out at Sydney’s Kings Cross. She experienced the “freeze response”. “I was just kind of in autopilot a little bit. I just wanted to go. And this was kind of the quickest way I thought I could leave. I just thought, ‘Just do what he says and then you can go’,” Mullins, who was a virgin at the time, told Four Corners. The 21-year-old man accused of sexually assaulting her was initially found guilty, but the conviction was overturned. The court agreed Mullins had not consented, but found he had a “reasonable belief” that she had. Mullins, now a research director for Rape and Sexual Assault Advocacy, believes all States should adopt affirmative consent laws. But she said education was just as important as legislative reform. “If we just change the law nothing’s actually going to change. We need to have those community attitudes change as well, and so everything that goes along with it is so, so important,” she said. Helping more victims Of the estimated 200,000 sexual assaults that occur nationally each year, only 11 per cent to 13 per cent are reported to police. About 5 per cent make it to trial and a mere 2 per cent result in a conviction. Those working to support survivors of sexual assault in WA told The Sunday Times they believed affirmative consent law reform could help more women come forward to report these crimes. In WA, those accused of sexual assault can argue a “mistake of fact” defence. This means even if a court finds a victim did not consent, the accused can argue they had “reasonable belief” they did. If a victim had a “freeze” response to a sexual assault and didn’t verbally say no or physically fight back, a case can be harder to prosecute. Experts said introducing a definition of consent that requires it to have been specified through words and actions would make this defence harder to use. Understandings of consent have also come up in recent WA sexual assault cases. In one case heard in Bunbury court, a 21-year-old man was found guilty of raping his girlfriend twice while she slept but was given a suspended sentence by the court. His defence lawyer, Paul Chapman, claimed his client was not a “sexual deviant” but that he did not understand consent. “It’s out of character for the morals to which he was taught, he didn’t fully understand exactly what was happening . . . what he didn’t understand is exactly what consent was,” Mr Chapman said. “In hindsight, he realises what he has done is incorrect, but at the time, he was trying to encourage her to have consensual sex.” Sexual Assault Resource Centre manager Kylie Laughton said affirmative consent legislation could see more potential victims come forward. “We do think that the affirmative consent laws that NSW have introduced are a good start, and we would be keen for law reform to occur here in WA,” she said. “We still have the ‘mistake of fact’ defence in WA, which means that the alleged offender can argue that they thought you consented because you didn’t say no. We would argue that the definitions could extend to ‘without coercion’, but this is truly a matter for the Law Reform Committee.” Laughton said the “freeze” response to sexual assaults was a “well-known physiological response to perceived harmful events, attack or threat to survival”. “We have seen ‘fight, fright, freeze, surrender, negotiate’ responses from clients, and all can occur for the one person at different times in the assault. People report that they felt frozen or could not speak or move during parts of the attack,” she said. “This can mean that sexual assault victims will lie very still, not speak and not engage their alleged attacker, trusting that they will lose interest, or complete the assault quickly. It’s a very protective response, because it means you are less likely to be physically harmed.” Shayla Strapps, solicitor and CEO of the Ruah Mental Health Law Centre, said a discussion about reforms could also be a positive step for survivors of domestic violence. But she was concerned about cases where consent had not been given freely. “There are immense challenges in the application of these reforms for women who are in violent relationships where the concept of ‘free and voluntary’ consent is problematic. Put simply, consent for many women in those relationships is a survival technique,” Strapps said. “There is an enormous need for education and awareness programs — for people of all ages and all backgrounds, and particularly those who are part of the justice system.” Women Lawyers of WA also say they see the NSW reforms as a positive and would welcome similar legislation here. “The amendment just makes it really clear that you need a positive, tangible sign to have consented,” barrister and WLWA committee member Farah Mehta said “From an evidentiary point of view, it would make it easier to prove (assault has occurred) the lack of a positive sign, in theory, (is) a lot easier to prove than the current standards are with consent, which is that it’s looked at in the context of all of their interactions.” ‘They don’t realise what has happened’ Kate Raston and Nicolette Beard run consent courses for young women in WA schools through their organisation We Are Womxn. (Womxn is an inclusive term, pronounced women). They will often encounter students who have been the victims of sexual assault, but have not realised it because they do not have a complete understanding of what consent means. For some of the young people, the course will be the first time consent has been explained to them. In some cases, the young women will have believed what happened to them was not assault because the perpetrator was someone they were dating. Some of the students may have even not realised that assault is not just non-consensual penetrative sex and that other acts like forced oral sex are also assault. They may also have blamed themselves if they were intoxicated at the time assaults occurred. “They start sharing their stories from a young age, where they actually didn’t realise they were engaging in non-consensual sex until we start explaining the definitions,” Beard said. “Lots of them felt that because they were in a relationship and dating someone, they just thought that was expected of them, they didn’t really realise that in relationships, you have to consent for every interaction that you have . . . lots of them are also being coerced into sex. “We find that really concerning, that they actually didn’t know what they were doing was non-consensual until they’ve had this education.” The young people often had a misconception that sexual assault was something that only happened in dark alleyways and perpetrators were strangers, not people that they might know or even be in relationships with. Ms Raston and Ms Beard, both 26, started their organisation in response to the lack of education they had at school on sex and consent, which later affected their own relationships. They both believe affirmative consent laws would assist in preventing sexual assault. “Education is power, and knowledge is power. It’s all well and good for us to stand up and say, ‘Don’t do this’, but to have a law behind us that backs us and says this is actually illegal, it really makes an impact,” Ms Raston said. “What (the laws) show is that affirmative consent is common sense and they’re not this sort of outlandish concept that we all really need to relearn . . . they really shift the onus from victims to perpetrators, and it gives victims more hope that there will be a positive outcome from going through the judicial system.” Azelene Williams, a family and domestic violence advocate and survivor of abuse who assists in education programs, said it wasn’t just young women who would benefit from these kinds of laws. She said she often saw older women who were in marriages where they were sexually abused. Often there might be outdated views that consent was not needed within a marriage. The mother of a 15-year-old daughter herself, she said it was crucial to educate people as young as possible. “I don’t believe a child is ever too young to start talking about it,” she said. “We change the way we talk and our language will change a little bit. But my belief is you need to start as soon as possible.” 1800 Respect Sexual Assault Resource Centre counselling line 08 6458 1828