Making sure it is a "yes", new sexual consent laws for NSW

Note to readers: This article contains information about non-consensual sexual activity

Sexual consent laws will be strengthened and simplified with new “affirmative model of consent” law reforms announced by the New South Wales Government last week.

The reforms will require individuals to say or do something to communicate their consent to sexual activity – stipulating that an accused person’s belief in consent will not be considered reasonable under law, unless they did or said something to ascertain the consent of the other party.

These new laws are part of a social change towards requiring definite signs of consent for sexual activity, that is society wide, which will include Christians

“Rather than leaving things to inference or assumptions”, the changes will require “something to be said or done that communicates consent”, New South Wales (NSW) Attorney General Mark Speakman said.

“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.”

“You can’t assume consent. There has to be something positively said or done to communicate consent …” – NSW Attorney General Mark Speakman

The consent reforms are designed to both protect victim-survivors and educate the community, clarifying what the Attorney General (AG) says is “a grey area” in the state’s current criminal laws.

“Any crime has two elements: it has an act and a mental element,” Speakman told ABC reporter Patricia Karvelas on her Radio National Drive program. “In the case of sexual assault, the act is sexual intercourse without consent. And at the moment in NSW, the mental element is actual knowledge there’s no consent, recklessness about consent, or lack of reasonable grounds to believe there’s consent.”

But, the AG said, “the problem with consent in NSW is that there’s a grey area where the complainant freezes or doesn’t physically resist or offer any protest.

“We want to make it clear that, in that situation, you can’t assume consent. There has to be something positively said or done to communicate consent. And the other elements – the state of mind of the accused – they won’t be reasonable grounds in future, in NSW, unless the accused has said something or done something reasonable in the circumstances to ascertain consent.”

The AG acknowledged there has been “growing calls across the community for reforms to respond more effectively to the scourge of sexual violence in this country.” He says these reforms are “not only about holding perpetrators to account”, but also “trying to change social behaviour”.

Is the ‘devil in the detail’?

However, not all have responded positively to the NSW Government’s announcement. Some have expressed concerns about the so-called ‘devil in the detail’ and how it will be applied practically. Others have suggested the reforms could lead to criminal charges being laid against people who, though innocent of sexual assault, fail to meet the law’s list of requirements to prove consent.

2GB radio’s Ben Fordham challenged the AG on the matter recently, posing several hypothetical scenarios.

“So let’s say you’re at a nightclub. You’re talking to a girl, you dance, you have a few drinks and you say, ‘let’s go back to my place’ and she agrees. I’m guessing that does not equal consent?” Fordham asked.

“That does not equal [consent]. You can’t presume consent,” Speakman replied, reiterating that a lack of physical resistence does not imply consent under the new reforms.

“This idea of consent is that it has to be communicated,” Speakman said. “It’s pretty simple. If you want to have sex with someone, they have to say or do something to show they want to have sex with you. Otherwise, you have to do or say something to ascertain they want to have sex with you.”

Speakman dismissed “hysterical suggestions” he had heard in response to the reforms, such as the need for a written contract or verbal statement recorded on video before having sex.

“This is just a matter of common sense. If you want to have sex with someone, you’ve got to have people doing or saying something indicating they want to have sex with you,” he said.

Fordham asked the AG about “one of those moments of hot passion, where two people are carried away with the moment and they just start making love.”

“None of this is meant to kill the heat of passion and the joy of the moment,” Speakman replied.

“When someone’s saying ‘no, no, no, we shouldn’t be doing this’?’ Fordham asked.

“Well, that’s a lack of consent … if they’re saying no, that’s pretty, pretty clearly, no, they don’t want to consent,” replied Speakman.

“Even in marriages, a partner is entitled to expect that the other partner will ascertain whether they want to have sex.” – NSW Attorney General Mark Speakman

Fordham pressed on: “… sometimes what we say and what we do are two very different things, particularly in that scenario … When two people are saying, ‘I don’t know whether we should be doing this because we work together or because we’re friends, we don’t want to destroy the friendship. And you can say to someone, ‘I don’t know about this, I don’t know whether we should be doing this,’ but you’re doing it because you want to do it.”

“Well, you should put it beyond doubt,” the AG said, succinctly.

“What if people are married?” asked Fordham.

“Well, even in marriages, a partner is entitled to expect that the other partner will ascertain whether they want to have sex. A husband can’t force himself on a wife or vice versa,” Speakman said.

Fordham asked what actions one might do to show consent, and the AG said gestures, facial expressions and hand movements might all be used.

“Can you, you imagine that in a courtroom though, when you’ve got one person saying ‘there was a nod’ and the other person saying ‘no, I wasn’t nodding’?” Fordham protested.

“Well, you’ve already got this situation in sexual violence cases, where often there is no witness and it is the complainant’s word against the accused’s word and it comes down to who the jury believes,” Speakman countered.

“But the onus is always on the prosecution to prove their case beyond reasonable doubt, and that will remain the case. It won’t be a matter for the accused to prove they did something. It will be a matter for the prosecution to prove that the accused didn’t do something. There will always be a presumption of innocence.”

“But this fact dispute and the possibility of false complaints – you’ve got that now …  And this actually offers more protection for everyone because, instead of assuming consent or presuming consent from a lack of protest or lack of physical reaction, you’re asking people in a common sense way to indicate they want to have sex.”

The AG said “one thing we can’t do” with laws around sexual consent is “have a kind of ‘income tax assessment act’ where you prescribed every sort of fact scenario”. Instead, the new laws were predicated on a “common sense and reasonableness” approach that has worked in other areas of criminal law – such as ideas about dangerous driving or negligent driving, where legislators have not listed every potential scenario.

“It’s ultimately a matter of common sense. And if there is to be a prosecution, the DPP [Department of Police Prosecutions] will only prosecute matters where there’s a public interest in doing so. So we’re not going to have prosecutions of trivial matters in New South Wales,” he said.

Speakman also dismissed concerns that the reforms subverted the foundational legal principle of ‘innocent until proven guilty’, saying “the onus of proof will still be on the Crown”.

“The prosecution will still have to prove the case beyond reasonable doubt. And that’s the procedural fairness that’s afforded to all accused in New South Wales,” he told Karvelas. “This means we will have an affirmative model of consent, which will address issues that have arisen in sexual offence trials about whether an accused’s belief that consent existed was actually reasonable.”

The pathway to historic sexual consent law reform

NSW’s consent law reform follows the lead of Tasmania, with Australia’s southern-most state being the only state in Australia with an affirmative consent model. But NSW laws seek to improve upon one aspect of Tasmanian laws.

“In Tasmania, the language that’s used is ‘reasonable steps’ and there has been some case law suggesting that steps could mean an internalised thought process. We don’t think that’s good enough. There has to be something overt that manifests consent and manifests an inquiry into consent,” Speakman said.

The NSW reforms respond to recommendations made by the state’s Law Reform Commission (LRC), following Speakman’s May 2018 request that they review consent laws.

The LRC’s subsequent final report was published in November 2020, following significant community engagement with this issue that gathered 110 preliminary submissions, 36 submissions in response to its Consultation Paper, and 51 submissions in response to its draft proposals. In total, almost 3900 people accessed the LRC’s online survey.

The NSW Government is supporting, or supporting in principle, all 44 of the LRC’s recommendations. But the reforms go even further. An accused person’s belief in consent will not be reasonable in the circumstances, unless they said or did something to ascertain consent.

Speaking to Karvelas, the AG pointed to current sexual assault conviction rates in the state as evidence for the need for reform.

“In New South Wales, when a complaint is made to police, typically the conviction rate ends up only being at about 3 per cent,” he said. “When the matter goes to trial, the conviction rate’s probably a bit above 50 per cent, but the vast majority of cases never get to trial because they’re just so difficult to prove.”

“No law can ever erase the trauma of sexual assault, but we can send the message that survivors’ calls for reform have been heard.” – NSW Attorney General Mark Speakman

But it was the Saxon Mullins case that the AG credits as the catalyst for the historic reform.

“Saxon Mullins’ courage in telling her story a number of times was the catalyst for the LRC report. This is a woman who, apart from the trauma of an unwanted sexual encounter in a back lane in Kings Cross, then faced two trials, two appeals, and ultimately the accused didn’t stand a third trial because the court found it would be oppressive to continue. So this is someone who not only went through the trauma of what she went through in that back lane, but then had four court cases that ultimately led to nothing. Her bravery in advocating for victim-survivors has been an important catalyst for these reforms,” Speakman said.

“I think she said today, she stands on the shoulders of many victim-survivors. There has been a case for reform for a number of decades, but it has reached a crescendo point in the last six months or so. And I think Saxon deserves all our admiration and credit for the fight that she has fought,” he said.

“No law can ever erase the trauma of sexual assault, but we can send the message that survivors’ calls for reform have been heard.”

Mullins, who is survivor advocate and director from Rape and Sexual Assault Research and Advocacy, welcomed the proposed reforms, which she described as a huge leap forward for consent laws in NSW.

“After so many years fighting for this, it’s almost hard to believe we’ll actually have affirmative consent laws in NSW,” she said.

“I know there’s so much more to do in this space, but this is a huge win for survivors, and I’m so grateful for all the survivors and academics who’ve paved the way for this to happen. I thank the Attorney General for going the extra step to ensure affirmative consent will be law in NSW.”

Three interesting recommendations by the Law Reform Commission

One recommendation from the LRC accepted by the NSW Government is that instructions be given to juries in sexual assault trials to overcome commonly held “rape myths” that can prevent them from reaching a conviction.

The details of these recommendations are categorised into five areas:

  1. Direction on the circumstances in which non-consensual sexual activity occurs – e.g. non-consensual sexual activity can occur between between people who know each other, have an established relationship or who are married.
  2. Direction on responses to non-consensual sexual activity – e.g. people respond differently to non-consensual sexual activity.
  3. Direction about a lack of physical injury, violence or threats – e.g. non-consensual sex may or may not involve in physical injury, violence or threat.
  4. Direction on responses to giving evidence – e.g. trauma affects people differently, so the presence or absence of emotion or distress does not necessarily mean that a person is not telling the truth about an alleged sexual offence.
  5. Direction on behaviour and appearance of a complainant – it should not be assumed that a person consented to a sexual activity because the person: (a) wore particular clothing or had a particular appearance, or (b) consumed alcohol or any other drug, or (c) was present in a particular location.

Another LRC recommendation is that somebody who lies to convince someone to engage in sexual activity with them could be criminally liable.

In his interview with the AG, Fordman enquired whether this would include someone who lied about being single.

“We’re proposing fraudulent inducement would be something that negates consent in NSW,” Speakman told the radio host.

“That’s not a new idea. We [NSW], apart from the Northern Territory, are the only jurisdiction in Australia that doesn’t have some kind of criminal sanction for fraudulently inducing sexual activity.

“But the LRC that’s looked at this said the sort of examples you gave probably wouldn’t be caught by fraudulent inducement. It’s pretty narrow, but we’ll be very careful in the drafting process to make sure that this ground doesn’t overreach.

“So if someone says, ‘I once played first-grade [rugby league] for South Sydney’, or ‘I’m training to become an astronaut’, or ‘I’ve never slept with someone before’, then that wouldn’t fall into the category?” Fordham asked.

“I wouldn’t think so … this will be, this will be pretty narrow …” the AG said. “There is an example in the ACT where … a male went online, procured sex from another male, pretended that they were female, [saying] that there’d be a whole horde of other females there to have sex with this person. That elaborate hoax was something that was allowed to go to the jury.”

Another detail clarified by the AG is that consent will need to be given at the time of the sexual activity – making any earlier agreement to engage in sexual activity insufficient for establishing consent.

The LRC’s report describe consent as “a continuous process of mutual decision-making that occurs throughout a sexual activity”.

“This recognises that sexual activity involves multiple and ongoing decisions. Consenting to one kind of sexual activity does not imply consent to anything else. Consent can change or be revoked,” the LRC’s report states.

A Bill to give effect to the reforms will be introduced to NSW Parliament later this year. The AG has committed to a wide education campaign to ensure the judiciary, prosecutors, police, defence counsel and the community are clear about the changes before the laws take effect.

If you or someone you know has experienced sexual assault, support is available from those who are trained to help: call 1800 RESPECT on 1800 737 732 or, if in NSW, contact NSW Rape Crisis on 1800 424 017.