NSW law reform report misses chance to institute 'yes means yes' in sexual consent cases

Written by Jonathan Crowe, Professor of Law, Bond University

The New South Wales Law Reform Commission has released its recommendations for reform of the state’s sexual consent laws.

After a process lasting more than two-and-a-half years, the report is a disappointment to survivors and advocates seeking comprehensive reforms.

The review was sparked by the advocacy of Saxon Mullins, the complainant in the high-profile rape case of Luke Lazarus.

A jury found Lazarus guilty of rape in 2015, but his conviction was overturned on appeal. He was then acquitted in a judge-only trial. An appeal court found a legal error in the judge’s reasoning, but ruled it would be “oppressive” for Lazarus to face a third trial.

The Lazarus case highlighted the complexity of consent law in NSW after two trial judges applied the law incorrectly. However, the Law Reform Commission report fails to address the main concerns raised by the case.

Importantly, the reforms would not require defendants to try to find out whether a person wants to have sex before claiming they believed the person consented. This undermines attempts to enshrine affirmative consent in NSW law.

Mistaken belief in consent

The central issue in the Lazarus case was whether he believed on “reasonable grounds” that Mullins was consenting. Judge Robyn Tupman ruled he did, because Mullins supposedly “did not say ‘stop’ or ‘no’” and “did not take any physical action” to resist him.

This approach is concerning, since sexual assault victims often “freeze”, meaning they do not physically resist their attackers. Recent research shows defendants are more likely to allege a mistaken belief in consent where a victim freezes during the attack.

The NSW Court of Criminal Appeal decided the judge made a mistake in failing to discuss what (if any) steps Lazarus took to ascertain consent. However, even if she had addressed this issue, the result might not have changed.

NSW law does not require a defendant to check whether the other person wants to have sex before alleging a mistaken belief. It merely says the court must consider any steps they took to do so.

This means anything the defendant did to ascertain consent, no matter how inadequate, can be used to support their alleged mistake. However, a defendant who did nothing to obtain consent can still be acquitted on this basis.

A survey by the NSW Law Reform Commission found 77.5% of respondents agreed that:

a person who does not take steps to check if their sexual partner consents should not be allowed to argue that they believe there was consent.

However, the review did not embrace this change. It cited concern for “the rights of accused persons” – even though a positive steps requirement has existed in Tasmania and Canada for more than 15 years without apparent problems.

Affirmative consent

The review aimed to promote an affirmative consent standard. This means consent must be active and ongoing throughout a sexual encounter. It is based on “yes means yes”, rather than simply “no means no”.

To this end, the report proposes new jury directions to address widespread misconceptions about sexual violence. It acknowledges the substantial body of peer-reviewed evidence showing the impact of “rape myths” on criminal trials.

The report recommends the law should expressly state a person does not consent to sex if they do not say or do anything to indicate consent, as well as that a person does not consent simply because they don’t physically or verbally resist.

These changes could help address cases where the victim freezes during an assault. However, the lack of any positive steps requirement for mistaken belief in consent undermines the recommendations.

A defendant would be unable to argue the victim consented just because she didn’t say no. But the defendant could still use the victim’s lack of resistance to support an alleged mistaken belief in consent – as in the Lazarus case.

Peer-reviewed research has found defendants use mistaken belief arguments to introduce factors that can’t be relied on to establish consent – such as the victim’s lack of resistance, sexual history and social conduct.

A positive steps requirement is therefore fundamental to affirmative consent.

Withdrawal of consent

The NSW Law Reform Commission’s reforms would clarify that a person who consents to a particular sexual act doesn’t consent to a different act. This would cover cases where a person covertly removes a condom during sex or switches to another type of sexual act without consent.

The report also recommends the law expressly state that a person may withdraw consent to sex by words or conduct at any time. This proposal might at first seem consistent with an affirmative consent standard.

However, the change would require a person to actively revoke consent once it is given. This is unrealistic where, for example, a person becomes unconscious during a sexual act or a consensual sexual interaction turns violent.

The proposal on withdrawal of consent has therefore been described as “a wolf in sheep’s clothing”. It would undermine affirmative consent by placing the onus on victims to resist aggressive or non-consensual sexual behaviour.

The NSW Law Reform Commission’s recommendations are a missed opportunity for the state to lead the way in making affirmative consent the law.

Instead, after two-and-a-half years – and thousands of submissions and survey responses – the proposals still fall short of shifting responsibility for sexual violence onto the perpetrators.

Authors: Jonathan Crowe, Professor of Law, Bond University