Menu

Changing consent law

Nov 19, 2019 • 16m 40s

A review of consent laws in New South Wales is recommending changes to how juries interpret sexual assaults and the onus that is placed on defendants. Bri Lee on the response from frontline organisations and the woman whose case triggered the inquiry.

play

 

Changing consent law

124 • Nov 19, 2019

Changing consent law

[Theme music starts]

ELIZABETH:

From Schwartz Media, I’m Elizabeth Kulas, this is 7am.

A review of consent laws in New South Wales is recommending changes to how juries interpret sexual assaults, and the onus that is placed on defendants. Bri Lee on the response from frontline organisations and the woman whose case triggered the inquiry.

[Theme music ends]

ELIZABETH:

Bri, could you tell me a little bit about Saxon Mullins?

BRI:

Yes. Saxon Mullins is an award winning survivor advocate. Most people know her name because she was the complainant in the Lazarus case.

So in 2013, when Saxon was 18 years old, there was an incident behind a nightclub in Kings Cross. As a result of that incident, Mullins said that she had been sexually assaulted. The defendant in that case, Luke Lazarus, claimed that the sexual encounter was consensual.

ELIZABETH:

Bri Lee is a lawyer, author and an advocate for consent reform. She's also a writer for The Saturday Paper.

BRI:

So the legal proceedings for that matter began. And then in 2015, Lazarus was found guilty of sexual assault by a jury. That decision was overturned on appeal because the trial judge had erred in giving directions to the jury, specifically directions about how they were supposed to make decisions about Lazarus’ state of mind. And then a second trial was ordered and the second one had to be judge alone, so no jury, because of the publicity involved by that stage.

Archival tape -- Unidentified Man #1:

“Luke Lazurus, the son of the owner of the SoHo club in Kings Cross, was today back in court facing a retrial over the alleged rape of a young woman.”

Archival tape -- Unidentified Man #2:

“You’re obviously desperate, you don’t want to go back to jail.”

Archival tape -- Unidentified Man #3:

“Today he faced a new trial with no jury, just a judge. The trial is expected to last more than a week.”

BRI:

And the judge at that second trial acquitted Lazarus. And then there was a further appeal. And the Court of Criminal Appeal found that the judge in the second trial had also erred. You know, that's just such a drawn out and sort of pinballing ordeal, legally and obviously ethically.

So they ruled that a third trial would just be unfair to everyone involved by that stage.

ELIZABETH:

But in that Lazarus case, there was no conviction?

BRI:

Correct. And Mullins case really became known after she appeared on the ABC Four Corners program last year, because she hadn't been identified before that. And that was when she really put her face and her own name to this story as being the complainant in the Lazarus case.

Archival tape -- Saxon Mullins:

“My name is Saxon Mullins. In 2013, when I was 18 years old, I was raped in an alleyway in Kings Cross.”

Archival tape -- Sarah Ferguson:

“Saxon Mullins’ Identity has been protected until now, but she’s given up her anonymity to tell her story to Four Corners, in the hope it will lead to change.”

ELIZABETH:

Why? Why did Saxon Mullins come forward and speak?

BRI:

Well, I think that's much more powerful, in her words, than mine.

Archival tape -- Saxon Mullins:

“I was still hurting. Like, it got to be over for everyone else, there’s no other avenues, everyone’s done, everyone goes home, and then it’s just me, and I’m still here and I’m still doing it, even though it’s not happening any more. I’m still living it.”

ELIZABETH:

So, Bri, tell me about the controversy that followed that Four Corners episode. Why did you think this case in particular got so much attention, both from the public and those within the legal sector?

BRI:

Yeah so most of the controversy in this case, both in the initial trial and in the subsequent appeals, was about how the judges and juries had interpreted the defendant's alleged state of mind. So at pretty much every stage, everyone was in agreeance that Mullins herself did not consent.

But the legal and ethical question at the heart of the Lazarus case was whether Lazarus knew, or he ought to have known, that Mullins was not consenting. The finer legal question here is also about whether defendants, in cases where consent is debated, should be held to the standard of a, quote marks, “reasonable person,” or whether the jury should ask whether this individual defendant's beliefs were reasonable from their perspective, which is a very subtle but quite a critical difference.

And I think it's pretty telling that most of the submissions made by individuals or organisations who consider themselves to be fighting for progress are fighting for that “reasonable person” standard, because it is widely agreed upon as being, in these cases where consent is involved, almost a higher standard. Whereas if you are asking whether the individual defendants beliefs were reasonable, there's an extra element there of sort of subjectivity, of a sort of softening on what is potentially expected from someone.

So the case really raised these big questions of not only what is consent, but what is the accepted standard for communicating that consent? And how legally these interactions can be navigated. So the morning after that Four Corners report came out, the New South Wales Attorney-General Mark Speakman announced that he was referring the consent laws to the Law Reform Commission.

Archival tape -- Unidentified Woman #1:

“Why were you so moved by this particular case?”

Archival tape --Mark Speakman:

“Well put yourself in the shoes of the young woman on Four Corners last night. You’ve already been humiliated in a laneway, and then you have to endure two trials, two criminal appeals, so four times in court, and yet the matter finally doesn’t have a resolution. So in New South Wales we want to do what we can to clear up the law and make it fairer.”

BRI:

Shortly after the announcement of the review, the terms of reference were announced. There have been two rounds of submissions that have followed since. And then just last month in October, the Law Reform Commission released their draft proposals.

And the final date for individuals or organisations to make submissions in response to that draft was yesterday.

ELIZABETH:

And what did Mullins think or hope that the review would achieve when you spoke to her?

BRI:

She'd been a bit cynical, to be honest, you know, with good reason. She told me that, and this is in her words; “I guess I'm a bit used to the outcome not really going well with these things. So I thought the same would happen here”. And, you know, it's pretty easy to understand why she would have felt like that. But a few months ago, she was contacted by two policy advisers involved in the commission to meet and discuss the changes. And she said that after those meetings, she felt like they had taken on board a lot of the feedback they'd received. And she supported any approach to make the laws clearer and easier to understand in this area.

ELIZABETH:

We'll be right back.

[Advertisement]

ELIZABETH:

Bri, we're talking about the review of consent law that's currently being carried out by the New South Wales Law Reform Commission. What's come out of that review so far?

BRI:

The commission's draft proposal includes three new interpretive principles. The first is that, and I'm quoting here directly; “Every person has a fundamental right to choose whether or not to participate in a sexual activity. The second is that a person's consent should not be presumed. And the third one is that sexual activity should involve ongoing and mutual communication, decision making and free and voluntary agreement.”

The other sort of progressive parts of the draft include specific mention of what is known as the freeze response. And there's also an entire page of new proposed jury directions that are designed to encourage jurors to question their own sort of perspectives and prejudices. And that suggestion goes some way to debunking misconceptions jurors might have regarding sexual violence, and in particular that problem where often people will presume a victim was consenting because they didn't fight back or didn't fight back hard enough.

ELIZABETH:

What are you hearing from those in the sector about this current draft?

BRI:

So I spoke to about six different researchers and frontline orgs in total, so that’s like Women's Legal Service, Rape and Domestic Violence Services Australia, into how they say the laws of consent need to change. And the main criticism I heard is that this draft doesn't go far enough, specifically in the areas that were most controversial about the Lazarus case. So we have examples of other laws functioning in Australia, in other states and territories that do a sort of more progressive approach. So in Victoria and Tasmania, they use what's called a positive consent model, which requires defendants to have taken steps to either verbally or physically inquire as to whether a person is consenting.

The proposed changes in the New South Wales Commission's draft don't go that far. The difference here is whether or not the jury can consider what steps the defendant took or if there is a requirement that the jury consider what steps they took. In the draft that the New South Wales Law Reform Commission have proposed, the jury are absolutely encouraged to ask what the defendant said or did to ascertain if the complainant was consenting. But that is a step lower than what currently is required in Victoria and Tasmania, where it must be considered. So it's pretty easy to imagine why one of those standards, i.e. the actual positive consent model, is seen as a sort of higher standard than what the New South Wales Law Reform Commission is proposing.

ELIZABETH:

And what happens if there isn't evidence that somebody did take those steps to ascertain the other person's consent?

BRI:

Yeah so what happens now is that the jury would simply continue to look at all of the other factors involved in the case. So the situation in New South Wales is that it is still relevant if anything was said or did by the defendant, but it's not necessary.

One of the ways it's been put to me by Karen Willis, who's the head of Rape and Domestic Violence Services Australia, is yes means yes and nothing less. This really goes to the heart of why this push for reform is not actually about whether or not the complainant was consenting. It's about the sort of legal framework. And also, to be honest, the ethical and moral framework we have for deciding what we expect of defendants and how we make decisions about what we think the defendant's state of mind was.

ELIZABETH:

The New South Wales Bar Association also made a submission to the inquiry. What did that submission include?

BRI:

So the bar association said that an affirmative onus, so that's this idea of a positive consent model, would not displace rape myths, nor would it address outdated views among a jury. The association's recommendations are that two separate offences be created, one for sexual assault, where it could be proven that the defendant actually knew the complainant was not consenting or was indifferent. And then they suggest that we create another lesser charge, with a lesser penalty, for a different and lowest standard reflecting situations in which the defendant was negligent about consent. And essentially they submitted that it was not appropriate to and I quote, impose liability for so serious an offence in situations of negligence rather than sort of deliberateness. And the New South Wales Law Reform Commission's draft does not explicitly engage with that suggestion. But when I spoke to Tim Game SC, who's the president of the Bar Association, he said the association was committed to continuing to assist the commission on this issue and that they would be making final submissions.

ELIZABETH:

And what did Mullins think of the draft reforms when you discussed that draft with her recently?

BRI:

I would describe her response, to be honest, as sort of pleasantly surprised. She told me that one of the strongest parts of the proposal was the new content on what is sort of colloquially referred to “stealthing,” which is when someone, you know, Person A consents to intercourse, specifically with the use of a condom. And then the intercourse either begins or at some point continues without one because of Person B's actions.

And the proposals from the New South Wales Law Reform Commission are now suggesting what I personally believe should be the case, that it is possible to consent to intercourse on an understanding that it will be safe sex, essentially, and that that doesn't mean you consent to unsafe sex. And this is really important because a Melbourne Sexual Health Center and Monash University study from 2017 found that more than 30 per cent of women have experienced stealthing.

This is really exciting, honestly, because it would be the only specific legislation relating to stealthing anywhere in Australia. And if that does go through the way it's drafted, it would be a real opportunity to clarify the legal position on what is essentially a problem of community attitudes.

So Mullins, yeah, she was hesitantly optimistic about the draft, I would say. She liked where the commission had said, and I quote, “The purpose of this statement is to provide a firm foundation for community education initiatives about consent.” Because for Mullins, she said that's where the magic lies. She told me she thinks that just changing the law does nothing, particularly with a crime like sexual assault, which is so vastly underreported. And what really needs to change is society. And she said, we need to change the people, and we need to change the men.

ELIZABETH:

Bri, thank you so much.

BRI:

My pleasure. Thank you for having me.

[Advertisement]

[Theme music starts]

ELIZABETH:

Elsewhere in the news:

Paul Keating has criticised the Australian government, media and security agencies for their anti-China rhetoric and for failing to understand the importance of China in the Asia Pacific. Speaking at the Australian’s Strategic Forum event in Sydney on Monday, the former Prime Minister expressed concern that Australia’s foreign policy lacks any sense of strategic purpose. He also said that, quote, “The whispered word of ‘communism’ of old is now being replaced by the word ‘China’”.

And a three-week contested hearing has begun in the Melbourne Magistrates’ Court into the behaviour of actor Craig McLachlan, who was charged earlier this year with indecently assaulting four female actors. McLachlan is facing 16 charges for indecent assaults that are alleged to have occurred in 2014, including an allegation that he kissed and groped one of the female actors 20 times while they were performing in a stage production of The Rocky Horror Picture Show. The court heard that McLachlan later said to the woman, quote, “I made such a fool of myself. I’m such an old fool.” McLachlan’s lawyer has said his client denies the charges and that they should be quashed. The four women will give evidence over the coming days in a closed court.

This is 7am. I’m Elizabeth Kulas. See you Wednesday.

[Theme music ends]

A review of consent laws in New South Wales is recommending changes to how juries interpret sexual assaults and the onus that is placed on defendants. Bri Lee on the response from frontline organisations and the woman whose case triggered the inquiry.

Guest: Author, advocate for consent reform and writer for The Saturday Paper Bri Lee.

Background reading:

Proposed reforms to NSW consent in The Saturday Paper
The Saturday Paper
The Monthly

Listen and subscribe in your favourite podcast app (it's free).

Apple podcasts Google podcasts Listen on Spotify

Share:

7am is hosted by Elizabeth Kulas. The show is produced by Emile Klein, Ruby Schwartz, Atticus Bastow and Elle Marsh. Brian Campeau mixes the show. Our editor is Erik Jensen. Our theme music is by Ned Beckley and Josh Hogan of Envelope Audio

Tags

brilee consentlaw lawreform




Subscribe to hear every episode in your favourite podcast app:
Apple PodcastsGoogle PodcastsSpotify

00:00
16:40
124: Changing consent law