NSW Attorney General Mark Speakman has called for a review into the sexual consent provisions in the Crimes Act, stating there is a “systematic problem” when dealing with sexual assault allegations.
This comes following a Four Corners program that exposed a high profile sexual assault case of Central Coast woman Saxon Mullins last week.
In a letter to the New South Wales Law Reform Commission, Mr Speakman said “We can’t legislate for respect, but we can examine whether the consent provisions in our Crimes Act require simplification and modernisation.”
When speaking to the ABC, Mr Speakman said the system had failed Ms Mullins and suggested that cases like these are why victims of sexual assault are reluctant to come forward.
“[Saxon Mullins has] been humiliated in an alleyway at the age of 18, she’s had to tell her traumatic story in court, she’s had to face two trials, two appeals, and still, no final outcome,” he said, “What this shows is that there’s a real question about whether our law in New South Wales is clear enough, is certain enough, is fair enough.”
Ms Mullins (23) told Four Corners that she was anally raped by the son of a King’s Cross nightclub owner, Luke Lazarus back in 2013. An 18-year old virgin at the time, Ms Mullins has since sat through two trials and two appeals where she told the courts how Mr Lazarus led her into an alleyway behind the Soho night club, and proceeded to rape her.
After serving only 11 months, Mr Lazarus was released from prison and acquitted of all sexual assault charges, when on appeal Judge Robyn Tupman found he reasonably believed the teenager gave consent.
Annie Cossins, a professor of law and criminology at the University of NSW says Judge Tupman used Ms Mullins lack of physical resistance to determine Mr Lazarus belief she was consenting and pointed to the idea of “contemporary morality”; meaning he made a moral judgement based on this belief of consent.
Cases like Ms Mullins are not uncommon with only 10 per cent of alleged sexual assaults ending in a conviction.
Ms Mullins told Four Corners she suffered from a panic attack and she froze up, feeling helpless to defend herself.
“I never knew what panic attacks felt like until my incident,” she says, “I never knew what it felt like to be utterly hopeless. The first time I felt like that way was in an alleyway behind Soho.”
What Does The Law In NSW Say?
With movements like #MeToo and the #TIMESUP campaign gaining traction, Australians have turned to social media to express their disappointment with NSW law, calling for stronger penalties and better clarification around the laws of consent.
One woman took to Twitter using the hashtag #IStandWithSaxon and said “I hadn’t heard of this case before reading this. The way women can let other women down like that judge on appeal who decided the rapist had reason to believe he had consent is (in)furiating and depressing.”
Despite having the highest rate of incarceration when dealing with criminal charges than any other state, there are still several gaps in legislation around defining consent.
In NSW, sexual assault cases are dealt with under the Crimes Act 1900 where the age of consent is 16. To explicitly consent a person must “freely and voluntarily” agree to sexual intercourse. If a person is under 16, cognitively incapacitated, intoxicated, unconscious, asleep, threatened or detained, the law says consent is invalid.
It is the “freely and voluntarily” part that comes under scrutiny within cases of sexual assault where consent seems implied but not expressly given.
Within the case of Ms Mullins, the defence argued that because she did not actively fight off sexual advances by Mr Lazarus, she was implicitly giving consent. An argument that did not sit well with the rest of Australia.
“’If it’s not an enthusiastic ‘yes’, then it is not enough’ BRILLIANT. Not bloody rocket science either. Brave woman,” said one woman on Twitter, and another said “We all need to make sure young men in particular understand #EnthusiasticConsent. Thank you Saxon for highlighting this very real problem #IStandWithSaxon #NoMeansNo.”
How Does The Law In VIC View Consent?
Although Ms Mullins’ case occurred in NSW, similar cases happen all over the country, but the laws surrounding sexual assault allegations differ slightly by state.
Within VIC, consent is defined under section 36 of the Crimes Act 1958. In comparison to NSW, greater clarity is given around determining willful/unwillful consent.
If the case of Ms Mullins was tried in VIC, the law would be more likely to side with her argument that Mr Lazarus had no reason to believe she was consenting to sexual intercourse because she ‘did not say or do anything to indicate consent’, and she holds the power to later ‘withdraw consent to the act taking place or continuing’.
Whilst Ms Mullins states she may have initially accepted the sexual advances of Mr Lazarus by consenting to kissing him, it was the following actions that she did not consent to.
A report by the Australian Bureau of Statistics found that Victoria has the lowest incarceration rate for serious criminals. The median jail term is 24 months and sexual assault offenders serve an average of 42 months compared to 48 in NSW.
Victorian laws also waive consent when a person fears not only threat to themselves, but somebody else. By using force or fear of violence, a person cannot explicitly give consent, even if they believe they are doing so to help another person. The act interestingly also states that consent is not given if there is a fear of harm to an animal.
In the case of drugs and alcohol, if a person was too intoxicated to actively withdraw consent at any stage, either prior to or during sexual activity, consent is not considered valid and any action would be classed as sexual assault.
This basically means you can consent to any sexual activity with a person but have the right to change your mind and withdraw consent at any stage. The problem here is determining this factor in court as it’s one person’s word against another’s.
The act also notes several circumstances where consent is not “informed” and therefore not valid. These include the person being incapable of understanding and or/mistaken about the sexual nature of the act and the person mistakenly believing the act is for medical or hygienic purposes. Where an animal is involved, a person cannot consent if they believe the act is for veterinary, agricultural or scientific research purposes.
The NSW review will consider the opinion of experts as well as community concerns and the development of laws to combat this national issue. It is expected VIC alongside remaining states will also look into their own definition of consent and handling of sexual assault allegations.
Minister for the Prevention of Domestic Violence and Sexual Assault Pru Goward says “I’m particularly pleased the Law Reform Commission will take into account the experiences of sexual assault survivors in the criminal justice system. The law of consent should protect vulnerable people from sexual assault and put offenders on notice.”