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.
What is affirmative consent?
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.
Fair enough explanation generally but:
“The legal system as it stands in many states renders a sexual assault victim a witness to their own rape…”
This is not a peculiarity of rape trials. In all the common law legal systems, including ours, crimes are generally prosecuted by the state against the defendant. Therefore, in almost all criminal trials, whatever the alleged crime, a victim can only appear as a witness. If we don’t want a victim to be a witness to the crime we have to scrap the entire criminal justice system.
The particular horror in so many rape trails is that the alleged victim is not simply treated as a witness but is attacked in a way that puts the victim on trial. This is the aim of the accused’s defence. That is, the victim becomes de facto a defendant, in effect accused of having caused or consented to the alleged crime, and has to demonstrate innocence to the court while under prolonged and hostile interrogation in the witness stand before there is any chance the alleged rapist can be convicted.
Back in the good old days, when a woman,even a wife, was listed amongst the chattels of a household, a charge of rape was preferred (prosecuted) by the state as a crime against property – ie the male owner.
Thus was the Rule of Law and Property Rights maintained.
And in the same good old days, until 1828, if a wife should kill her husband, the Treason Act of 1351 viewed the deed as a betrayal of the natural order worse than just murder and counted it treason, though only of the petit variety.
If judged under that Act, Clytemnestra achieved the notable double of both varieties of treason at a single blow.
The abandoned queen Clytemnestra was one of the few characters of Greek mythology who did what was right, in full knowledge on the societal consequences.
As did the twins, Electra & Orestes, such integrity even the gods had to honour.
Nobody gave a fig about Aegisthus the toyboy.
I’m very much in favour of affirmative consent laws being introduced, however advocates like Dr Burgin do themselves and their cause zero favours saying stuff like this:
“… 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”.”
Until proven otherwise, it’s an ALLEGED victim.
Advocates of affirmative consent laws need to be incredibly mindful of the fact that everyone defendant is innocent until proven guilty no matter whether the charge is rape or murder or exceeding the speed limit.
“Shifting the focus of rape trials… onto the actions of the accused” is about as close to reversing the onus of proof of guilt from the prosecution to the defence as you can possibly get (without expressly doing just that).
Advocates which do not appreciate the gravity of this risk having their reforms and arguments (convincingly) attacked and undermined by extremist “pro men” etc groups (the kind that pauline hanson etc love to pander to).
Going all in like Dr Burgin does by effectively saying that all “alleged victims” are infact “victims” gives these extremists all the fodder they need.
If we could guarantee that 100% of all ALLEGED victims were in fact victims (objectively speaking); then there is absolutely nothing wrong with forcing the focus of rape trials squarely on the actions of the accused.
But we cannot guarantee that.
As such, all it would need is for one wrongful conviction of an objectively proven innocent defendant- and support for the reforms would vanish.
Fixing one injustice (ie rape trials disproportionately focusing on the actions of alleged victims), by potentially creating another injustice (ie rape trials disproportionately focusing on the actions of alleged rapists) leaves us not much, if any, closer to getting just outcomes in a higher percentage of circumstances.
Advocates for affirmative consent might well be frustrated by the currently low bar set by appellant courts- but lurching too far is without a question effectively making any rape charge defendant guilty until they prove their innocence.
Advocates might want to be careful what they wish for- all it would take is one high profile victim to be outed as a fraud and all they have worked for will vanish.