Specialist sexual assault courts, restorative justice and lower penalties for offenders who honestly believed their victim agreed to sex are among the proposals submitted to a NSW-led review into consent laws, which is now in its final stages.
The Commission’s review of section 61HA of the NSW Crimes Act 1900 began in May 2018 and is expected to deliver its recommendations to NSW Attorney General Mark Speakman in coming months. However, many groups have told the Commission that amending this law will do little to address the systemic issue of sexual assault, its prevalence as a crime and troublingly low conviction rates.
Tim Leach, the executive director of Community Legal Centres NSW told LSJ that “there is a growing consensus that legislative reform on its own will not improve access to justice for victim-survivors of sexual violence in NSW.”
The review was sparked by the high-profile case of R v Lazarus, which saw two trials and two appeals in an exhausting legal process lasting almost five years. At the centre of the case against defendant Luke Lazarus was his knowledge on whether then 18-year-old Saxon Mullins had consented to having sex with him in the back alley of a Kings Cross nightclub in May 2013.
Mullin’s courage in making her identity public in a Four Corners feature by the ABC last year, and the growing momentum of the #MeToo and #TimesUp movement, has led to calls for NSW to adopt an “affirmative consent” model. This would bring it into line with the current law in Tasmania. But many legal bodies remain resistant to enshrining an explicit verbal agreement in law.
In its submission dated June 2018, the Law Society of NSW recommended that current laws remain the same, as “section 61HA strikes the right balance between the complainant … and the accused”. However, President Doug Humphreys noted that “ongoing judicial education and attention to the difficulties which juries face … are also areas which require attention to ensure consistent and fair outcomes in sexual assault trials.”
Section 61HA was most recently reformed in 2007. Before that change, an accused could not be found guilty if they honestly believed the person consented – even if that belief was unreasonable. More than a decade on, many submissions to the Commission say the current law does not go far enough.
“Reframing the definition of consent will not solve the fundamental problem with sexual assault trials: the over-emphasised focus on the conduct of the complainant, rather than a focus on the conduct of the accused,” wrote Professor Annie Cossins from the University of NSW in her submission.
The NSW Bar Association has suggested the introduction of a new, negligent, sexual assault offence with a lower maximum penalty. The Association told the Commission this would result in an appropriate grading of offences, “recognising that knowingly sexually assaulting a person is a more heinous offence than honestly believing a person is consenting”.
The Bar also advocated for more lenient sentences for offenders who honestly believed they had consent. It submitted that the current maximum penalty of 14 years imprisonment for an offence of sexual intercourse without consent is “extremely high” for an offender who honestly (if unreasonably) believed it was granted.
Community Legal Centres NSW has suggested that 61HA be amended to “clarify that consent can only be granted if a person says or does something to communicate consent”. It also asked the Commission to consider specialist sexual assault courts and increasing the use of restorative justice, currently only available in NSW if an accused is convicted.
Without a more holistic approach to improve the community’s understanding of respectful relationships and consent, community lawyers fear the review will have little impact in addressing the systemic drivers of sexual assault.
“We need a meaningful, respectful community-wide conversation about the archaic systems and cultural norms around sexuality and sexual relationships which allow so much sexual violence to occur with impunity,” Mr Leach told LSJ.
“Without this difficult but important conversation, we will fail to support victim-survivors and, crucially, to reduce the number of sexual assaults here and across the country.”