Attorney-General Mark Speakman announced yesterday that he’d seek to reform NSW consent laws to include “enthusiastic” or “affirmative” consent.
The announcement was met with widespread praise by survivors like Saxon Mullins who told the proposed changes were "an important step into changing the way that we talk about sexual violence.”
But two experts told The Feed that while they welcome the proposed changes, they remain ‘cautiously optimistic’ about how they’d work in practice.
Dr Julia Quilter has already examined the three major legislative reforms in the sexual offences space; in 1981, 1989 and 2007.
She said while the reforms proposed by the Attorney-General have the potential to create positive change, we won’t know their impact until they’re tested in courtrooms.
“We can get good legislation in place but it doesn't always mean practices or the operation of the law in courtrooms accord with the ideals that are part of those changes,” Dr Quilter, associate professor at the University of Wollongong’s School of Law, said.
“Until we actually have changes in the operation of the law, the fact that you introduced well-intended progressive law reform might not shift [things] in real-time.”
Image What are the proposed changes?
Mr Speakman said he’d aim to introduce a bill that adopts an “affirmative consent model” before Parliament next session.
The reforms would emphasise that a person does not consent to sexual activity until they say or do something to communicate it.
The changes would also mean an accused person's belief in consent will not be reasonable unless they said or did something to ascertain consent from their sexual partners.
“The clearest example would be to say, “Would you like to make love?” Mr Speakman said.
“If party B says yes, that’s a clear example. It may not be words, it may be that in response to that question party B makes a hand gesture, nods, or beckons (the other person) towards them.”
NSW Attorney-General Mark Speakman. Source: AAP
Mr Speakman also emphasised that consent is a process and can be withdrawn at any time.
“Consent is something that is given voluntarily by agreement … it can be withdrawn … consent to one sexual activity is not consent to any other sexual activity,” he said.
“Self-intoxication of the accused is not an excuse for failing to form a reasonable belief.”
Debate around the changes
The New South Wales Bar Association has launched a scathing criticism of the proposed changes, claiming they could potentially “criminalise” consensual sexual relationships.
In a press release, the president of the NSW Bar Association, Michael McHugh, claimed the proposals “are likely to result in significant injustice.”
“The Attorney General’s proposals would have the effect that, even in situations where a person consents to sexual activity but has not communicated that consent by words or actions at that time, the law would hold that there was no consent,” said Mr McHugh.
“This approach would potentially criminalise many consensual sexual relations.”
Dr Quilter believes the statement by the NSW Bar Association is not a fair assessment of the proposals.
“There seems to be some sort of suggestion that sexual acts will be criminalised where perhaps the complainant was, in fact, consenting,” Dr Quilter said.
“I think it’s highly unlikely something like that would progress through the criminal justice system if a complainant was consenting.”
“I don't think it's unfair in the areas of sexual relations for people to be communicating about sexual activity.”
Other experts were also sceptical about claims that the reform was “going too far”.
“I think that, as a community, we do need to take a stand and say no, we actually have higher expectations, in terms of what you need to be doing in a sexual encounter,” said Dr Bianca Fileborn, senior criminology lecturer at the University of Melbourne.
‘Much more needs to change’
While she welcomed the changes, Dr Quilter believes they could leave room for defence lawyers to continue to “ask questions that suggest women lie about sexual assault allegations.”
“Cross-examination in general needs to change,” Dr Quilter said.
“Defence lawyers tend to put to the complainant reasons why they might be lying; they don't want the boyfriend to know… they don’t want to say they were intoxicated,” she added.
“You name it, there’s always an add-in that’s always highly unlikely.”
Dr Fileborn echoed this sentiment, saying the proposed changes could still be interpreted and applied in a “problematic way."
Under the changes, “reasonable belief” that someone has consented would not be enough. However, defence lawyers may still draw on “creative interpretations” of how a victim’s actions imply consent, Dr Fileborn said.
“I would think asking someone, or having a verbal conversation with someone who is capable of giving their consent at the time may be reasonable [proof they’ve consented],” Dr Fileborn said.
“To what extent things like body language, noises or sounds will be taken into consideration, I think remains to be seen.”
The proposed reforms would introduce an "affirmative model" of consent into NSW law. Source: Pixabay
Dr Fileborn believes sweeping changes are needed to change how sexual offences are dealt with in the criminal justice system.
“The vast majority of survivors don’t report to police, and when they do, they’re very unlikely to progress to court. Of those who do go to court, only a tiny percentage of accused people are actually found guilty,” she said.
“We also need to be looking at alternative mechanisms for addressing sexual violence, as well as emphasising prevention.”
If you or someone you know is impacted by sexual assault, you can call 1800RESPECT on 1800 737 732 or visit .
