The global rise of the #MeToo movement brings the public and political discussion around sexual harassment, sexual assault and consent into a new era, one in which interpersonal interactions in professional and other contexts are being subject to fundamental re-examination.
In this era, the practice of speaking out has enhanced prominence, with women (the majority of victims of sexual assault and sexual harassment) taking advantage of social media to identify themselves and their attackers/harassers.
The discussion in New South Wales (NSW) has been focused on the Lazarus case. Luke Lazarus was tried for the sexual assault of Saxon Mullins following sexual intercourse between the two outside a Kings Cross nightclub in 2013. There were two trials and two appeals in this complex case, and they attracted extensive media attention both in Australia and overseas.
The willingness of Saxon Mullins to forego her anonymity, be identified as a victim and survivor of sexual assault and be interviewed on the ABC’s Four Corners in May 2018 was the catalyst for the reference given to the NSW Law Reform Commission regarding consent and sexual assault in criminal law.
The issue in each of these legal processes in the Lazarus case was consent and knowledge of Saxon Mullins’ non-consent by the defendant, Luke Lazarus.
The law of consent in NSW is complex. The offence of sexual assault involves sexual intercourse without consent, and knowledge of non-consent. To prove sexual assault, the prosecution must prove that non-consensual sexual intercourse took place and that the defendant knew that the complainant was not consenting to sex.
Since 2007, NSW law has included a positive definition of consent – as free and voluntary agreement – and provided that knowledge of non-consent may be proved on the basis that the defendant knows the complainant does not consent, or is reckless as to non-consent, or on the basis that the defendant has no reasonable grounds for believing the other person consents. It was this last section of this provision that was a particular issue in the Lazarus decisions.
This last way of proving the mental element of the offence requires the fact-finder (a jury or a judge if sitting alone) to have regard to ‘any steps’ taken by the defendant to ascertain whether the complainant was consenting and not to consider the defendant’s self-induced intoxication.
Since Saxon Mullins has spoken out, the NSW Law Reform Commission is examining whether this provision of our criminal law should be amended. One possible reform is the introduction of a ‘communicative model of consent’, which would shift the focus of the law to what the complainant does to indicate consent. For example, the Tasmanian criminal code provides that a person does not consent if he or she does not say or do anything to communicate consent.
The Sydney Institute of Criminology’s recent submissions to the NSW Law Reform Commission review into sexual consent legislation are part of the institute’s ongoing commitment to criminal law advocacy to inform public debate. Submissions from the Institute's members are available on the Law Commission website.
The NSW Law Reform Commission has now issued a consultation paper on this topic, and invites comment on potential reforms to the law from stakeholders in government, academia, the legal profession and the community.
The turnout at the event in August and the robust conversation it generated emphasises the importance of a range of public forums to inform the community on criminal law and criminal justice, and the challenges of striking the right balance between victim and defendant rights.