Rape or sexual assault: what do I do now?

Rape or sexual assault: what do I do now?

WHETHER you’re having sex in Queensland, NSW, Tasmania or any other Australian state or territory, you may not realise how much the sexual consent laws vary.

If you’re in Tasmania or Victoria, where Australia’s consent laws are the toughest, you’ll have to make sure the person you’re having sex with said or did something that “communicated consent”.

And if you’re taken to court over that sexual encounter and accused of rape, you’ll have to prove in court that you took reasonable steps to obtain that consent.

In NSW, as of 2007, a person needs to be aware “or have knowledge” that there’s been a lack of consent to potentially be convicted in court of sexual assault.

A person accused of having knowledge of lack of consent would have had “no reasonable grounds” for believing there was consent.

The 2007 reform was a gamechanger for NSW, especially for people accused of rape.

In essence, the reform assisted people accused of rape who might have a “genuine but distorted” view about what’s appropriate in a sexual encounter.

The reform was an instrumental part of a 2013 rape case, where a man named Luke Lazarus was accused of anally raping an 18-year-old woman in a Kings Cross alleyway.

Eventually, he was acquitted of the charge but in May, Saxon Mullins, the woman at the centre of the now-infamous 2013 case, went public with her ordeal.

Lazarus, the man accused of raping Ms Mullins in a nightclub alleyway, had been acquitted of the charge due to confusion around whether or not there’d been consent.

Almost immediately after Ms Mullins told her story through Four Corners,NSW Minister for the Prevention of Domestic Violence and Sexual Assault Pru Goward called for a review into the laws.

“If it’s not an enthusiastic yes, then it’s a no,” Ms Goward said in May.

“I feel that this is where the law in NSW needs to go. That is certainly the case in Tasmania and I’m hopeful that the Law Reform Commission will come to a similar conclusion.”

But not everyone is ready for the state’s sexual consent laws to toughen up.

In its submission to the Law Reform Commission, the NSW Bar Association argued against the changes and upping the level of communication needed before sex.

The association, which represents the state’s 2400 barristers, did admit section 61HA, the section the government wants to amend, was “unduly complex”.

But it still argued against amending the section, insisting “a person should not be liable to conviction for sexual assault in circumstances where he or she honestly believes that there is consent”.

“Criminal offences must be defined in a way that catches only conduct that is generally regarded as so culpable as to be deserving of punishment. Consent which is obtained after persuasion is still consent, at least for the purposes of the criminal law. Crimes of sexual assault should be confined to cases where sexual choice is non-existent,” the submission reads.

The association’s president Arthur Moses, SC, told theSydney Morning Heraldthat if NSW was to criminalise having sex on an honest but unreasonable belief of consent, it should “be a separate and less serious offence”.

The Law Society of NSW, the largest legal membership group in Australia with 60,000 solicitors, also similarly opposed the amendment.

“To the extent that there are concerns about community attitudes towards violence against women and the issue of consent, we submit that meaningful and wide-reaching community education which promotes communication in relation to consent and respectful and responsible behaviour in sexual relationships is the most effective way to achieve long-term change,” the society’s submission read.

NSW Police however has a different opinion on amending the law.

“The criminal justice system fails survivors of sexual assault. This is due to a variety of reasons, one of which is the operation of s61HA in criminal proceedings,” the NSW Police Association’s submission reads.

“The law is currently inappropriate for a large number of people who legitimately believe they have been subjected to sexual conduct to which they did not consent.”

The association said NSW Police is “dismayed at how daunting and traumatic it is for a victim to realise what is needed to prove she did not consent”.

The association referred to the case of Ms Mullins, writing the then-18-year-old had been “let down by the criminal justice system as a result”.

Ms Mullins, the woman at the centre of the five-year legal battle, has been fighting for enthusiastic consent ever since her ordeal.

“Enthusiastic consent is really easy to determine, and I think if you don’t have that, then you’re not good to go,” she told ABC.

“All you need to say is, ‘Do you want to be here?’ And very clearly, ‘Do you want to have sex with me?’

“And if it’s not an enthusiastic ‘yes’, then it’s not enough. If it’s not an enthusiastic ‘yes’, it’s a ‘no’. That’s it. And then, you’re committing a crime.”