(Image: Private Media)

In the past two months, huge strides have been made in consent law across Australia. NSW’s affirmative consent model passed the lower house last week, similar laws have been proposed in Victoria, and various other states are reconsidering their sexual assault legislation. The NSW bill signifies significant progress towards a best practice affirmative consent model, and there are promising signs that other states will follow suit. 

The key change in both the NSW bill and Victoria’s proposed laws is the adoption of an affirmative consent model. Affirmative consent should be fairly simple in practice: it’s the idea that consent should always be communicated, with all parties giving and seeking consent before engaging in sex, and continuing this conversation throughout. Legislating affirmative consent is a whole other beast, however. This area of law has always been difficult to legislate, due to its highly contextual nature and the broad scope it covers. 

The approach the NSW bill has taken is to confirm that a belief in consent is not reasonable if nothing was said or done to seek consent, rejecting the possibility of claiming consent was assumed. Dr Rachael Burgin, executive director of Rape and Sexual Assault Research and Advocacy, says this is a crucial element of the affirmative consent model.

“This particular provision will go a long way in ensuring that our modern values are upheld in the law, in that we believe it is reasonable to expect someone to take steps to gain consent and it is unreasonable not to,” Burgin said.

What changes can we expect?

Burgin explains that these reforms represent a significant cultural change, with one of the central goals being to dispel pervasive rape myths that are relied upon extensively by defence barristers in rape trials. Evidence has demonstrated these myths permeate every step of the legal process, from policing through to decision-making at trial — including the jury’s verdict. 

The legal system as it stands in many states renders a sexual assault victim a witness to their own rape, and encourages invasive and unfair questions that are doggedly focused on the accuser’s actions and designed to damage their credibility and imply blame. This is the case even where the court concedes consent did not exist and harm was done, as it did for survivor Saxon Mullins, whose advocacy and experience of the legal system led to these reforms. To counter this effect, Burgin says the new affirmative consent model will “shift the focus of rape trials from the actions of the victim and on to the actions of the accused”.

“This represents the ultimate aim of this reform, with the defence shifting their focus away from ‘how much she had to drink’ and towards proving the defendant’s actions were reasonable in the circumstance,” she said.

The legislation’s power to dispel rape myths and shift the focus to the accused will likely have a holistic impact on the handling of sex crimes, from the police’s investigation at the outset to prosecutorial decisions, and finally in the courtroom itself.

But don’t expect a change in trial outcomes

In reference to the drafted law in NSW, Dr Julia Quilter, legal academic at the University of Wollongong, welcomes the progress but has concerns about how the reforms will operate in the courtroom.

Quilter notes that requirements for communicative consent have existed in Victoria since 1992, but that the courts applied a very low bar to this standard.

“Trial transcripts show low uptake of the intention of the provisions, as appellate courts have contributed significantly to a narrow interpretation of communicated consent,” she said. 

For this reason. Quilter says new provisions could be similarly narrowly construed. Burgin agrees that there might not be a significant impact on trial outcomes, but she insists that this is not the measure of success for these reforms.

“This is a whole-of-system response, and as such we need to look at the benchmarks across the journey of the legal system,” she said.

“Our key metric for success is improving the experience of victim-survivors in seeking justice, and justice is not just outcome focused.” 

Acquittals will still happen, but these reforms will hopefully ensure that when they do, victim-survivors are not re-traumatised in the process. 

Education is key

The most important aspect of cultural change legislation of this kind may be that it can shape broader community understandings about sexual violence. The conversations it starts and the educational standards it sets will be key to tackling sexual assault as not just a legal issue, but a social issue.

Perhaps the greatest legacy of the advocacy in this space will happen before any court process is necessary — that is, if young people are effectively taught consent and the responsibility we owe to one another. We can have hope not only for a legal system that doesn’t leave survivors worse off, but a more just society in general.