One bizarre Australian consent law makes sexual assault hard to prove. What you need to know.

Sex is complicated and so are our consent laws

Lying to Angie may ruin the chances of contestants on The Bachelorette, but the consequences could be much more serious under a proposed new law.

Proposed changes to consent laws by the NSW Law Reform Commission mean fraudsters who lie about themselves in order to “catfish” people on dating apps such as Tinder and Bumble could find themselves before the courts on sexual assault charges.

A draft review of consent laws in NSW includes a proposal that laws be updated to include a “non-exhaustive list of circumstances in which a person ‘does not consent’ to a sexual activity”.

This list includes things like when a person is overly affected by drugs or alcohol, is asleep or unconscious, or consents out of fear or extortion.

It also includes a clause proposing that consent is invalidated when a person has sex with someone but is mistaken about their identity, the nature of the sexual activity, the purpose of the sexual activity, or because they’ve been “fraudulently induced to participate”.

The review was sparked last year after Saxon Mullins waived her right to anonymity and went on Four Courners to discuss the acquittal of Luke Lazarus, whom she accused of raping her outside his father’s Kings Cross nightclub in 2013, when she was 18.

He was sentenced to three years jail but later acquitted after Judge Robyn Tupman ruled the crown had “not established that there were no reasonable grounds for believing the complainant was not consenting”.

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The day after that episode aired, NSW Attorney-General Mark Speakman and then sexual assault prevention minister Pru Goward announced a review of the sexual consent provisions in the Crimes Act to determine whether the law should be changed to better protect survivors of sexual assault.

A draft of that review recommends a number of changes, including a proposal that a person does not freely and voluntarily consent to sex when they are “induced by fraud”.

“Our proposal is intended to cover any circumstance in which participation is dishonestly procured by a false representation or upon a false pretence, known by the maker to be false when it was made,” the draft review reads.

This could potentially cover using a photo of someone else on your dating profile and trying to pass them off as yourself, or inventing a fake identity for use on social media, a practice commonly known as “cafishing”.

Some catfishers use it as a way of exploring their own gender or sexual identities by constructing a false persona, perhaps of a different gender, to flirt with other people online.

It’s also a common tactic used by police to catch paedophiles.

Romance scammers commonly use catfishing to trick their targets, and while many romance scammers will go to great lengths to avoid meeting them in person, if a scammer was to have sex with the person they were swindling, the changed law would reflect that person had not consented.

Of course, fraud of this nature is already illegal, but the changed provision would mean their scamming charges could have a sexual assault charge added as well.

Submissions to the review have been mixed.

The Australian Lawyers Alliance (ALA) submitted earlier this year that the law should not be changed to adopt an “affirmative consent standard” because the definition given was too ambiguous and could cause unnecessary harm to complainants in the courtroom.

“The ambiguity of the phrase ‘does not say or do anything to communicate consent’

introduces a subjective element that is likely to be the subject of detailed cross-examination

within a sexual assault trial,” the ALA’s submission read.

“There is a heightened risk of extensive defence cross-examination of complainants in relation to previous sexual history and how consent has been communicated in those instances.

“Increased focus on the complainant’s sexual history and how consent has been communicated in the past, combined with a likely increased focus on the complainant’s conduct to assess whether her/his conduct amounted to communication of consent, undermines the objective of placing greater emphasis on the accused’s conduct. This may result in further trauma for complainants and a reduction in the reporting of sexual assaults.”

The Feminist Legal Clinic disagreed.

“Our preliminary submission proposes that evidence of positive confirmation of consent or explicit permission should be required to negate a charge of sexual assault,” the clinic’s submissions read, noting that “the clear majority” of 43 preliminary submissions were “in favour of adopting an affirmative consent model”.

Its submission accused defence lawyers opposing the changes of having “a vested interest” in maintaining the status quo, and also expressed concerns over submissions from the Law Society and Bar Association that “consent after persuasion is still consent”.

“What level of ‘persuasion’ (would) members of the bar regard as acceptable?” The clinic’s submission asked. “Are they just talking about flowers and a massage? Or are they talking about financial incentives, veiled threats, bargaining and relentless badgering? Would they be happy with the same level of ‘persuasion’ being used to extract confessions from defendants?”

The review is open for submissions until November 18.