Consent in Relation to Sexual Offences: Submission to the NSW

Submission to the NSW Law Reform Commission’s Consultation Paper 21

Imogen Senior

The following article contains discussion of sexual assault and violence. Reader discretion is advised.

This mock law reform submission was submitted for Law, Justice and Social Change, a criminology subject, by Imogen Senior. A law reform submission responds to questions set by a government to explore how law should change to better suit society’s needs. This submission was in response to the Consent in Relation to Sexual Offences commission in NSW, arguing for a defendant to prove the steps they took to ascertain consent, ensuring that it is active rather than assumed. It also advocates for forms of restorative justice outside the frames of the legal system.

Conseducation welcomes the opportunity to contribute to the inquiry into Consent in Relation to Sexual Offences.

Conseducation is a student-led organisation, running workshops to challenge sexual violence and rape myths in schools and universities. We ground our teaching in affirmative, ongoing consent, and the importance of ‘checking in’ with partners through every step of sexual encounters. We are influenced and coached by Dr Rachel Burgin, Chair of Rape and Sexual Assault Research and Advocacy.

However, we recognise that our educational programs are only part of a solution. Without legal reform, we lack grounds to claim the importance of affirmative, communicative consent. Hence, alongside our educational programs, we advocate for the reduction of sexual harm through legal reform. In turn, the legal system relies on sexual-health education to promote norms and grounds for ‘reasonableness’. Sexual violence can only be reduced with a combined effort of law and cultural change/education.

Sexual harm is incredibly widespread– one-in-five women experience sexual violence (Australian Bureau of Statistics 2017), and one-in-two have experienced sexual harassment (Australian Institute of Health and Welfare 2019). We speak alongside women between 18 and 24, who experience sexual harm at twice the rate of other age groups (Australian Human Rights Commission 2017). 26% of students have been sexually harassed in a university setting, and of the students sexually assaulted, 87% did not make a formal complaint.

In 2020, Conseducation ran 97 workshops across NSW, engaging with over 3800 students. Our mission is a world in which all are aware of the importance of safe, healthy sexual relations.

Recommendations: Overall, law should shift the focus, and burden-of-proof, from the complainant’s actions to those of the accused. We wish to centre the needs of the victim-survivor to minimise the impact that a ‘second rape’ can have during a trial (Boyd 2011). Our recommendations are as follows:

1. Define consent as free, voluntary, ongoing and affirmative agreement to a specific act. Consent must be enthusiastically communicated through words or actions and can be revoked at any point.

2. Require the defence to demonstrate the actions they took to ascertain consent.

3. The ‘reasonable belief’ in consent is only proven through evidence of continued, communicated steps taken to ascertain consent. a. Once the actus reas of sexual assault (non-consensual sex took place) has been proven by the prosecution, the burden-of-proof shifts to the defence to prove they had reasonable belief supported through active steps.

4. Where the actus reas of non-consensual sexual relations took place, but the mens rea cannot be proven, restorative justice is followed outside the frames of criminal law. a. The acquitted undergoes mandated sexual education workshops. b. The court provides admission of harm to the victim and the permission to be viewed as a victim of rape in the eyes of the law.

Gendered language Our use of gendered language reflects that sexual assault is a gendered issue. Men account for 97% of sexual assault offenders (Australian Institute of Health and Welfare 2019). If we fail to acknowledge this, women are further criminalised, and assumed to be perpetrators. Declining numbers of Australians recognise that domestic abusers are more likely to be men (VicHealth 2014), further reinforcing the need for a gendered lens.

Background This reform is in response to the case of R v. Lazarus, where an 18-year-old girl was raped behind a club in 2013 (Monaghan & Mason 2018). Though the first trial found Lazarus guilty, a second appealed his conviction. It was never in doubt that sexual intercourse took place, and that the victim-survivor did not consent. Rather, the case rested on mens rea– whether Lazarus knew the victim-survivor was not consenting. To disprove this, the defence relied on rape myths and the victim-survivor’s lack of resistance. The court did not require Lazarus to prove his grounds for a reasonable belief or demonstrate any steps he took to ascertain consent.

The perpetrator penetrated the accused anally, yet he offered no indication that he checked with, or even informed, the victim that he was engaging in this new sexual act. This should have been sufficient to fulfil the recklessness aspect of mens rea. The judge’s statement that Lazarus had ‘no reason to enquire’ as to the victim’s consent is incompatible with the stance that consent must be attained for every new act (Monaghan & Mason 2018, p.100).

Our recommendations aim to address the failures of the law when applied to this case.

3.2: Meaning of consent Define consent as free, voluntary, ongoing and affirmative agreement to a specific act. Consent must be enthusiastically communicated through words or actions and can be revoked at any point.

The definition of consent should fit the communicative and affirmative model. This defines consent as ongoing, specific and actively-communicated agreement between participants.

a) ‘Specific’: consent to one act, such as oral sex, is not consent to another, such as penetrative sex. b) ‘Ongoing’: consent may be withdrawn at any time. c) ‘Enthusiastic’: reluctant/passive consent is not sufficient. d) ‘Free and voluntary’: retained to ensure freedom from coercion or fear.

Only evidence that fits these criteria may be used as evidence of consent. This is of particular concern, since Victorian law- a communicative consent model- continues to rely on rape myths (Burgin & Flynn 2019). Cases rely on proving a lack of physical/verbal resistance, drawing on narratives of force and submission (Burgin 2019). This legitimises rape myths by sedimenting them in law.

Consent’s ongoing and specific nature implies it cannot be provided in advance. An inference of desire, arousal or flirtation is not indication of consent. Since 87% of sexual violence against women is committed by someone they know, and 40% in their own home (Australian Institute of Health and Welfare 2019), familiarity and closeness must not equate to consent. Yet friendly interaction is frequently cited in cases as indicating consent (Dyer 2019).

Consent must be ascertained holistically. The receival of a yes is contingent upon an environment free from coercion, and it does not necessarily continue throughout sex. Therefore, relying on one indication of consent without consideration of the environment disadvantages the victim (Lockwood-Harris 2018).

5.9: Steps to ascertain consent

Require the defence to demonstrate the active, ongoing, communicated steps they took to ascertain consent.

Current law:

‘When determining whether consent exists the court must look at all relevant circumstances, including any steps taking by the defendant to determine whether there was consent...’

The language of ‘including any steps’ serves to protect the accused. The accused is not compelled to show what steps they took to ascertain consent, unless it aids in their defence.

In order to centre the victim-survivor and shift the burden-of-proof, we recommend the law requires the defence to show evidence of steps they took to ensure consent. These steps must be actively communicated through words or actions, receiving an unequivocally affirmative response. They must not be mere thoughts or considerations. Sexual relations therefore begin with assuming non-consent, as opposed assuming consent until resistance occurs (Burgin, 2019).

This also ensures the court does not rely on inferences about consent. ‘Implied consent’ is when everyday action is reconstructed to become indicative of consent (Burgin & Flynn 2019). Male perspectives of women’s behaviour become indications of consent, ingraining misogyny into the court system (Burgin & Flynn 2019). Convictions still rest on what the perpetrator believed about the victim’s actions (Larcombe et al. 2016). For example, this reform seeks to prevent the accused from deciding that flirting, or a victim’s movement, were steps in ascertaining consent. It ensures that the defence cannot benefit from rape myths (Cockburn 2012).

We are wary of simplifying complex sexual encounters to a contract. Instead, a focus on continued steps seeks to emphasise that consent is not a single ‘check’, but an ongoing conversation. This is further reinforced through consent education.

While Victorian law has introduced an affirmative definition of consent as above, it does not require steps be taken, and implied consent is still cited in court (Burgin & Flynn, 2019). Victorian law aimed to shift blame from victim to perpetrator by focusing on how the accused viewed the victim’s actions. However, a focus on how the accused interpreted a victim’s actions remains preoccupied with the victim.

5.3: A “reasonable belief” test The ‘reasonable belief’ in consent is only proven through evidence of communicative steps taken to ascertain consent.

The ‘reasonable belief’ test evaluates the accused’s grounds for assuming consent (Dyer 2019). The question is not whether any reasonable person would have held such a belief, but whether the accused had reasonable grounds from their perspective.

The shift from honest to reasonable belief has not protected victims, failing to implement the objectivity desired by 2007 reforms (Larcombe et al. 2016). Without boundaries on what counts as reasonable from the perspective of the perpetrator, one cannot rule out a possibility of reasonable belief (Burgin & Flynn 2019).

Due to their prevalence, rape myths constitute a reasonable/average person’s suspicion of consent (Larcombe et al. 2016), permitting their use as a defence. ‘Reasonableness’ cannot be separated from societal narratives of seduction and sex (Lockwood-Harris 2018). The reasonableness standard is set by masculine ideas of sexuality (Burgin 2019). Reasonableness is never taken from the woman’s perspective (Pineau 1989).

Rape myths are shown to heavily influence decision-making, including ideas of what constitutes ‘real rape’ (Leverick 2020, p.257). Combining this with statistics on the prevalence of rape myths, a disturbing picture arises. VicHealth (2014) shows some of the most prevalent rape myths in Australia:

- Almost one-in-three believe that women lie about rape when they regret sex. - Two-in-five believe rape charges are used as a form of revenge. - One-in-three believe that men cannot control their desire for sex.

The solution is to narrow the definition of ‘reasonable belief’, by grounding it in a communicative model of consent as ongoing, affirmative and specific. It follows that ‘reasonable grounds’ may only be found by demonstrating communicated steps taken to ascertain continued consent. Under this law, if a person had not ascertained consent through active steps, and the person was not consenting, it is convictable rape (Dyer 2019).

In addition, long-term education is shown to improve perceptions on rape myths, and directly impact outcomes in court (Leverick 2020). By shifting social norms to require partners ensure consent through active steps, a reasonable person naturally becomes someone who checked their partner was consenting. It becomes unreasonable and reckless to assume consent. This social change may be facilitated by legal change, contrary to current law which reinforces social narratives of rape myths.

5.3 and 5.9 Once the actus reas of sexual assault has been proven by the prosecution, the burden-of-proof shifts to the defence to prove reasonable belief supported through active steps.

Most trials under Victorian law have proven that non-consensual sex took place (actus reas), with acquittal rather due to lack of proof for mens rea.

1. As per the presumption of innocence, the prosecution must prove the actus reas: that sexual intercourse took place, to which the complainant did not consent. 2. Once actus reas is proven, the defence must disprove mens rea, demonstrating ‘reasonable belief’ through the steps leading them to believe in the presence of consent. Only this will result in acquittal. 32

Our previous recommendations facilitate this shift. By requiring demonstration of the accused’s active steps to prove ‘reasonable belief’, the burden-of-proof for mens rea has already shifted to the accused. This also reinforces affirmative and communicative consent as a responsibility (Monaghan & Mason 2018). To prove reasonable grounds through continued and active steps, it becomes likely that the accused will have to testify.

TOR- Question 5 Construct an alternative method of justice within the courts for occasions where actus reas is proven and mens rea is not. Include: a) Compulsory education programs for the acquitted. b) Admission of harm to the victim.

Reform has made minimal impact on sexual assault statistics so far (Phillips & Chignon 2020). Statistics on violence remain static (Australian Bureau of Statistics 2017) despite reforms across the country. We propose an alternative method of seeking justice within the legal system beyond reasonable doubt, occurring only after a trial. This is not an alternative to criminal trials.

If the actus reas can be proven, but the mens rea cannot, the accused is not convicted, having believed there was consent. However, the accused still had sex without consent. Their misunderstanding of the crime, while not proving them guilty, presents risk to society. We therefore propose the court system manage harm through actionable steps without relying on punishment. This includes compulsory education programs and acknowledgement that sexual assault occurred- aiding in providing closure for victim-survivors, validating experience and acknowledging harm.

Our aim must be to centre the victim-survivors’ wishes and autonomy, not to seek retribution/punishment or carceral expansion. By giving victim-survivors a voice, the courts can embrace retributive justice. Longer prison sentences for perpetrators is not a long-term solution. Carceral feminism relies on police and prisons to stop sexual assault, failing to centre prevention (Phillips & Chignon 2020). The court system remains focused on, punitive responses to structural conditions that worsen violence against men (Lockwood-Harris 2018). We encourage the reform to acknowledge the importance of increasing resources for community education and prevention, working to prevent sexual violence.