This was published 2 years ago
Opinion
Sexual consent reforms will bring laws into line with community standards
Justin Gleeson
ContributorSexual consent laws would better reflect modern community standards under reforms proposed by the state government last week, yet NSW barristers appear to be on track to strike the changes down on the basis of old-fashioned views about consent and misplaced concerns about injustice.
The reforms proposed by Attorney-General Mark Speakman adopt a communicative and affirmative model of consent. A person does not consent to sexual activity unless they say or do something to communicate consent. And an accused person’s belief in consent will not be reasonable unless they say or do something to affirm consent is being given.
Attorney-General Mark Speakman announces proposed changes to the law around sexual consent.Credit: James Brickwood
The announcement was informed by a detailed process of public consultation and a careful report by the NSW Law Reform Commission, so I was disturbed to read that the immediate response of Bar Association President Michael McHugh SC, while acknowledging sexual assault is abhorrent, was to attack the core of the proposals.
McHugh said the reforms were likely to result in significant injustice because they would impose criminal sanctions on what he described as “a wide range of unproblematic sexual activity … particularly within established respectful relationships”.
After speaking with a number of senior barristers, 23 of us issued a public statement disagreeing with McHugh. For me, the point is put clearly by Anthony McGrath SC, the NSW Bar’s Advocate for Diversity: “The traditional approach to the prosecution of sexual assaults has repeatedly failed the victims, who are overwhelmingly women. When we fail the victims of sexual assault, we also fail our community. We need to address those failings by doing things differently and better.”
The NSW Bar Association has concerns about the proposed new laws.Credit: Jessica Shapiro
The Law Reform Commission put it this way: “The communicative model is underpinned by principles of autonomy and responsibility. Autonomy under this model means being able to make your words and actions mean what you intend … Responsibility means taking steps to ensure that the other person consents before engaging in a sexual activity.”
McHugh has now clarified that the Bar supports some of the changes and will respond in detail when it sees the draft legislation. However, even in that clarification, McHugh indicated the Bar remains concerned that the proposals “would deem consent to be absent when it was, in fact, present” and “could criminalise many consensual relations”.
If the Bar is to stand in the way of the core of these reforms, it needs to do a lot more thinking than it has to date, and consult all its members and committees to work through the issues before it responds.
Before the proposals were announced, the Bar argued before the commission that consent to sexual activity can be an uncommunicated state of mind. That very old fashioned view has not been the law in NSW for many years. It allowed defence barristers to harangue complainants that, in their head, they were willing to engage in a sexual act, even if they did or said nothing to indicate consent. It also allowed an accused to get off by creating mere doubts over what was in the complainant’s head at the time.
The reforms could reduce the degree to which a sexual assault trial re-traumatises the victimCredit: Peter Rae
The commission has made a compelling case that consent in sexual assault law of NSW has involved certain elements of communication since 1981. The proposed reforms build on that communicative model.
It is ultimately an ethical (and political) question whether consent should require a communicative act. Once a decision is made that it should, and what those acts and their timing must be, then that becomes the standard for consent under the law and the Bar’s objection collapses. The law is not deeming consent to be absent when it is in fact present; consent is absent because it is absent by the standards accepted by the community and enacted by the Parliament in advance of any sexual conduct.
If affirmative consent becomes the law, it will not ‘criminalise many consensual relations’; it will simply make clear what the standard is. Instead of the accused being able to put to the complainant: “You dressed in a provocative fashion, you flirted, you consumed alcohol with me, I thought you consented”, the accused will have the simple burden of asking before acting.
The reforms carry the real potential to reduce the degree to which a sexual assault trial re-traumatises the victim and to reduce the need for multiple retrials. The reforms in some cases, perhaps not many, will see those accused who might escape under the vagaries of the current law face their proper punishment.
As with all good law reforms, the ultimate test will be not so much whether they increase the rate of convictions, but whether they help stop wrongful and destructive behaviour occurring in the first place.
Justin Gleeson SC is a NSW barrister and former Commonwealth Solicitor-General.