Around this time last year, Chantel Contos began a discussion on social media about sexual assaults within schools, and the lack of consent education for teenagers.
As the conversation went viral, teens and young women came forward with accounts of waking up naked at parties or in a young man’s house, after passing out due to intoxication, with male peers penetrating them.
Other students said they were physically forced to perform oral sex on a male while intoxicated, sometimes while the boy’s friends were present or filming.
Others only realised something had happened after they woke up in pain, or found blood on themselves.
The epidemic of violence against women
Ms Contos fiercely lobbied for change within the education system – with her online petition garnering more than 44,000 signatures and containing 6,500 personal stories. At the same time, the conversation around sexual harassment in workplaces has become much louder, reaching fever pitch in the wake of the public allegations made by Brittany Higgins that she was sexually assaulted by a colleague in Parliament House.
Of the 144,797 victims of sexual assault recorded by police agencies between 2014 and 2019: 83% were female and 63% were under the age of 18.
As of next year, all Australian high schools will introduce sexual consent education, including subjects such as coercion, gendered stereotypes and power imbalances.
It’s high time – not only so that we can begin to turn the tide on violence against women by educating younger generations of me, but also in order to protect our young people.
New Affirmative consent laws
New affirmative sexual consent laws come into effect in New South Wales later this year and they no longer leave room for vague definitions of consent.
These law require people who consider engaging in sexual activity to have a conversation beforehand and mutually agree with a clear ‘yes’, before proceeding.
Young people need to understand their obligations or they run the risk of breaking the law.
Sexual intercourse without consent, which also called ‘sexual assault’ and was previously known as ‘rape’, is an offence under section 61I of the Crimes Act 1900 (NSW) which carries a maximum of 14 years imprisonment.
Under the forthcoming laws, a person is deemed to have not consented unless there is some communication of that fact – whether words, gestures or even facial expressions. Furthermore, a person’s belief that they obtained consent will not be recognised by law unless they did or said something to establish it.
The laws are designed to further protect victims by recognising the “freeze” response – a psychological response to traumatic situations whereby someone ‘shuts down’ or freezes and cannot communicate.
Consent laws have been under review for some time, a review that was prompted by Saxon Mullins, now the director at Rape & Sexual Assault Research & Advocacy (RASARA) who endured two high-profile trials over a period of five years after she accused Luke Lazarus of sexually assaulting her in an isolated alleyway behind a Kings Cross nightclub in 2013.
The issue of consent, which was central to the case, prompted the NSW government to make the laws stronger to make it easier to convict those accused of sexual assault, ensuring that people must explicitly obtain permission to have sex.
‘Stealthing’ will become a crime
In addition, ‘stealthing’ will be made a specific crime.
These laws make it clear that a person who removes a condom or other protection during sexual activity without the consent of the other person/s involved, can be charged.
The law reforms also include new directions for juries to address common misconceptions, and community awareness campaigns – including educational programs for judges, legal practitioners and police.
Concerns about affirmative consent laws
However, multiple concerns about the new laws have been raised by various groups, including the Law Society of NSW and NSW Bar Association who have campaigned against them since draft laws were made available in 2018.
Then Law Society President Doug Humphreys OAM submitted that the new rules effectively reverse the presumption of innocence – requiring a person to establish that they obtained affirmative consent before sexual acts and potentially during them.
This could be difficult to prove, and could result in innocents persons being convicted of sexual offences despite having done what they thought was necessary to obtain consent, or even where a complainant may be untruthful about having provided consent.
In practical terms, it may be difficult or near impossible to positively establish affirmative consent; after all, it is a serious crime to record an intimate encounter without the consent of the other person.
Is a person to have the other sign a document? If so, should that document be updated through the process? Even if such a document is signed, what is to prevent a vindictive or untruthful complainant asserting the signature was forced, or that despite the document, consent had been withdrawn during the process?
To many, the new definition is a step too far and places an impractical burden on participants – the failure to discharge of which could potentially lead to unjust convictions for sexual offences and years behind bars for innocent persons.
Far from being ‘common sense’, many are of the view the new definition is better described as vague, dangerous and even absurd – potentially increasing unfair prosecutions and wrongful convictions, ruining innocent lives and making a mockery of the criminal justice system.
As Mr Humphreys made clear in his submission to the Law Reform Commission, the existing definition;
“strikes the right balance between the complainant, who states she/he did not consent (to a sexual act) and the accused, who states he did not know that the complainant was not consenting.”
It “effectively provides the capacity for the trier of fact to apply such standards, in particular through the inclusion of the ‘reasonable grounds’ aspect of the test and the requirement for the trier of fact to take into account ‘any steps taken by the person to ascertain whether the other person consents’.”
The new definition, on the other hand, swings the pendulum way too far in favour of the prosecution and has the potential to turn those who have done nothing morally wrong into sexual offenders.