Luke Lazarus was recently acquitted of ‘sexual intercourse without consent’ after a retrial over an incident which took place in 2013 near a nightclub owned by his father.
On the night in question, Mr Lazarus met the complainant inside the club. They danced and he asked if she would like to go “somewhere private”. The woman replied “yes”.
Mr Lazarus accompanied her to an alleyway behind the club, and asked her to put her hands up against a fence. She complied. Lazarus then pulled the woman’s underwear and stockings down, and told her to get on “all fours” and “arch [her] back”. The woman once again complied. Lazarus interpreted the woman’s compliance as consent, but she later reported being raped.
Mr Lazarus was originally found guilty of sexual assault and sentenced to five years in prison. He served eleven months behind bars, before being released pending the retrial.
His recent acquittal has sparked public outrage, with radio shock jocks and tabloid newspapers claiming that a “rich boy” has gotten away with rape.
Response by the Law Society
The trials have drawn attention to the complexities surrounding the concept of consent in criminal law.
“These things are really difficult because the prosecution has to prove the case beyond a reasonable doubt that the person accused of the crime actually knew that the woman wasn’t consenting… or that they were reckless,” Pauline Wright, president of the Law Society of New South Wales, explained to the ABC.
“That’s a pretty high test … it’s about proving the person failed to properly consider at all that she was properly consenting or if they realised it was possible they weren’t consenting.
“There’s no reflection on the woman at all, this is purely about the state of mind of the person accused.
“If [the man] thought there was genuine consent then they didn’t commit a crime.”
Definition of consent in NSW
Section 61HA (now superseded by section 61HE) of the Crimes Act 1900 (NSW) defines consent as when a person “freely and voluntarily agrees to sexual intercourse.”
As most serious sexual offences are indictable, whether or not consent was given will be decided by the judge or jury after hearing the evidence in the case, eg hearing from the complainant and any other witnesses in the case, including the defendant.
There are a number of common myths about what constitutes consent, and this can affect the way that juries look at defendants in sexual assault cases.
The Law Reform Commission recommends that judges provide jury guidelines in sexual assault cases to ensure that misconceptions are addressed, and the jury is aware what consent actually is and isn’t.
For a defendant in a sexual assault case to be found guilty, the prosecution must prove beyond reasonable doubt that there was a ‘lack of consent’.
This means that there was no coercion, either physical or emotional, and the alleged victim wasn’t misled into having sexual intercourse by a belief of mistaken identity.
When is there a lack of consent?
There are a number of circumstances where it is assumed that the complainant could not have reasonably given consent.
- Where the complainant was too young to understand what they were giving consent to, or they were unable to understand due to their intellectual capacity.
- Where there was intimidation or coercion with or without the threat of immediate physical violence.
- Where the complainant was intoxicated or incapacitated.
- Where the complainant was asleep or unconscious.
- Where the defendant was in a position of authority or trust and the complainant submitted.
- Where the complainant was held against their will or unlawfully detained.
If any of the above circumstances are proved beyond reasonable doubt, then it will be found that the complainant did not consent.
Even if the complainant did agree to the sexual intercourse, if it can be demonstrated that they suffer from a cognitive or intellectual impairment, were a child at the time of the alleged offence, or the defendant was in a position of authority, the defendant can still be convicted of a sexual offence.
The court can also decide that consent wasn’t given in circumstances where it can be demonstrated that the defendant was reckless as to whether or not the complainant consented, or if they had no reasonable grounds to assume they had consented.
If the defendant knew that the complainant was under a mistaken assumption about their identity, marital status or they had been otherwise deceived into consenting to sexual intercourse, this can also be taken as evidence that consent wasn’t given.
If the defendant can show that they took reasonable steps to find out whether the complainant consented, this can help to strengthen their defence.
More education needed
A survey of 1000 young women in the ACT conducted last year by Equality Rights Alliance found significant gaps in school education on key issues such as consent.
Nearly two-thirds of the women and girls aged 16 to 21 said they had not been taught about consent or healthy relationships, while only 40 per cent had learnt about relationships in formal school classes.
“If you don’t have an understanding of consent, you might consent to one act and not another, or you might do something that makes your partner uncomfortable.”
Another survey conducted by VicHealth found disturbing attitudes toward consent among young people. It found that one in five young people believe there are circumstances in which women bear part of the responsibility for sexual assault, and that 20% of 16-24 year olds believe that women often say ‘no’ when they mean ‘yes’.
The surveys demonstrate the need for better education when it comes to the laws surrounding consent.