NSW Attorney-General Mark Speakman and Minister for the Prevention of Domestic Violence and Sexual Assault Pru Goward

The harrowing story of Saxon Mullins has raised serious questions about the complicated laws of sexual consent. The New South Wales government has referred the state’s consent laws to the Law Reform Commission in response to Mullins’ story.

“[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,” New South Wales Attorney-General Mark Speakman 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.”

Luke Lazarus was found guilty of sexually assaulting Mullins in the initial trial and sentenced to five years. This was overturned on appeal. It was found Lazarus had a genuine and honest belief that Mullins was consenting even though “in her own mind” she was not. The judge concluded Mullins had not asked Lazarus to stop — disputed during the trial — and “did not take any physical action to move away”. 

The Mullins case shows the complicated, subjective nature of NSW laws as they stand. The legal definition of sexual consent varies from state to state, both in terms of how one provides it, and the age at which they can do so. Each state also provides different examples of situations that negate consent — and even those factors vary in scope and interpretation.

The prosecution generally has to prove the complainant did not consent, rather than the defendant proving consent was offered. Thus, the difficulty comes with the jury having to establish the state of mind of both parties when the sexual activity occurred; whether it was reasonable for the defendant to conclude there was consent, and whether what was interpreted as consent was actually just submission. 

What is the legal age of consent?

The age of consent is 16 everywhere except South Australia and Tasmania, where it is 17. Most jurisdictions allow for exemptions to avoid criminalising normal sexual exploration between people both under the age of consent.

How do the states define consent?

Victoria and Tasmania define consent as a “free agreement”. Western Australia, New South Wales, the Northern Territory and South Australia use the phrase “consent freely and voluntarily given”. Queensland goes a step further, providing that consent means “consent freely and voluntarily given by a person with the cognitive capacity to give the consent”.

Tasmania’s laws on consent are currently considered the strictest in the country, explicitly requiring “active consent” — the judge must direct the jury that a failure to say no cannot be used as evidence that consent was given. It is towards that model that New South Wales is considering moving.

Victoria similarly requires a judge to direct juries “not to regard a person as having freely agreed to a sexual act just because they did not protest or physically resist, did not sustain physical injury or had freely agreed to sexual activity (whether or not of the same type) on an earlier occasion”.

However, Tasmania is the only jurisdiction that explicitly states that in the absence of explicit verbal or physical communication of free agreement there is no consent.

Queensland is the only state in Australia that doesn’t explicitly deal with the continuation of sexual intercourse after consent is withdrawn; but case law provides that such continuation can be rape. 

The Australian Capital Territory’s Crimes Act does not specifically define consent so much as list all the ways consent may be negated. Unsurprisingly, given this approach, it has the most factors that negate consent.

How can consent be negated?

All jurisdictions in Australia deem consent to be invalid if obtained by force or threat — South Australia adds specifically that threats can be explicit or implied — or while someone is unlawfully detained. The threat does not have to be towards the complainant; threatening to harm anyone to force someone else to have sex with you invalidates consent. Most states take into account the relationship between complainant and defendant, invalidating consent obtained by the exercise of authority or trust — whether it’s as a teacher or carer.

WA has the least explicit factors that negate consent; it is the only jurisdiction wherein being mistaken about the identity of a sexual partner is not explicitly deemed to revoke consent (although consent obtained by fraud or deceit is not considered consent), nor does it explicitly consider impairment through intoxication, or unconsciousness. It’s not quite as bad as it sounds, however; case law in WA has established that severe intoxication or unconsciousness means free and volountary consent cannot truly have been given. 

Of course, with law dealing with subjective interpersonal matters, there are many areas not contemplated by the law in Australia, which have been identified as potential issues, including economic abuse, threats to harm animals and threats to damage property.

If you or someone you know is impacted by sexual assault, domestic or family violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au. In an emergency, call 000.