NSW adopts affirmative consent in sexual assault laws. What does it mean?
The review was prompted by survivor advocate Saxon Mullins, who suffered two trials and two appeals, eventually no legal resolution of her rape case. Since then, Mullins has argued for affirmative consent.
However, the commission’s final report, released in November last year, did not recommend this standard. Despite this, Speakman has stood by Mullins’ side with the promise of a bill that goes beyond the commission’s recommendations – and will make affirmative consent the law in NSW.
Read more: NSW law reform report misses opportunity to institute ‘yes means yes’ in sexual consent cases
What is affirmative consent?
Affirmative consent means that consent is actively wanted and actively communicated. This approach shifts from the “no means no” to “yes means yes” norm, in that a person seeking to have sex with another person must obtain clear and expressed consent from them before (and during ) a sexual act.
In other words, submission without an active and participatory agreement is not sufficient to claim that consent has been given. In practice, it could be something as simple as ask someone if they want to have sex.
This type of consent standard shifts the focus from the actions of the victim-survivor to those of the accused. This is important, because we know that the same rape myths and the gender stereotypes that pervade society can be heavily used in sexual assault trials.
Despite this, and international changes to affirmative consent, governments across Australia have been reluctant to legislate, and law reform commissions are apparently reluctant to recommend it.
In addition to the NSW Commission, the Queensland Law Reform Commission earlier this year also failed to recommend affirmative consent, choosing instead not to recommend any substantive changes to the consent law. This report was heavily criticized as it relied heavily on research that had not been peer reviewed and ignored recent Australian academic research.
Read more: Queensland rape law ‘loophole’ may remain after review ignores concerns over rape myths and consent
Changes in New South Wales
The bill announced today changes this direction. Speakman has presented the reforms which go beyond the recommendations of the Law Reform Commission and, if adopted, would legislate affirmative consent in NSW.
Indeed, the bill requires that a person seeking to invoke the defense of “reasonable belief in consent” must demonstrate the steps that he or she took or the words that he said to ensure that he was. obtained his consent. Failure to do or say something (ie, “take action”) to verify consent means that any belief in consent will not be reasonable.
This is affirmative consent in action – and it is inspired by the law in Tasmania, which has operated without controversy for nearly two decades.
This is also where other jurisdictions fall. Victoria, for example, is often seen as a leader in affirmative consent. However, my research analyzing transcripts from Victoria County Court rape trials shows that the defense lawyer continues to rely on the accounts of resistance of victims or “implied consent», Which construct the ordinary and daily behavior of women as a sign of consent.
This is, as I have argued, because Victoria does not require an accused to demonstrate that he did anything to make sure his potential sexual partner was okay with it. If a person has taken steps to obtain consent, they can use it in their defense.
However, the reasonableness of a belief in consent in Victoria may be based exclusively on the accused’s perception of the victim-survivor’s conduct – that she drinks alcohol, wears certain types of clothes, dance near him or not offer enough “resistance” “To his sexual advances.
The New South Wales government has sought to address these issues that continue to plague Victorian courts by making these consent steps mandatory. This means that the NSW provision will act as a protection for victim-survivors in their quest for justice and will protect from prosecution those accused who, even in their error, acted reasonably.
What does it mean?
The ethics that a person who wishes to have sex should ensure that their potential partner also wishes to do so should underpin both our responses and our prevention of sexual violence.
This approach can set the framework for how we teach young people – or ‘re-teach’ older generations – consent, relationships and sexuality. In the context of a rape trial, the hope is that affirmative consent will go some way to ensuring that attitudes that blame women for their victimization and condone sexual violence do not play a role in the outcome.
As some might argue over the next few months, as we see this bill go through Parliament, it will not reverse the burden of proof. Those accused of sexual assault will continue to benefit from the presumption of innocence.
However, this bill imposes a evidentiary burden on an accused who seeks to raise a defense of reasonable belief in consent to show that he has taken action. The onus is on the prosecution to rebut it once the defense has discharged its burden of presentation.
A victory for the survivors
The NSW reforms are a huge victory for survivors, especially Saxon Mullins, who catapulted consent onto the public and political agenda.
But that’s not the end of the story. The law, while offering the potential to define community expectations, is – and should be – the last resort. Care must also be taken to prevent sexual violence before it occurs.