Victoria has announced that it is following NSW by introducing a bill that will bring the concept of “affirmative consent” into its rape law.
This is not true; the NSW law, reformed earlier this year, is not an affirmative consent model. It does take major steps in that direction, as will the Victorian equivalent, and is to be applauded accordingly.
Let’s be clear, though: we haven’t yet arrived at affirmative consent, and we’re still fiddling at the margins so far as the effect this is going to have on conviction rates for sexual assault offences.
To establish the crime of rape, the prosecution has to prove beyond reasonable doubt that the physical act occurred, that the victim did not consent to it and that the accused either knew there was no consent, was reckless as to that fact (didn’t care either way), or did not reasonably believe the victim was consenting.
The problems this formula presents are twofold: the prosecution has to prove a negative (absence of consent) and then, if it is found that the accused believed there was consent, the prosecution has to prove a second negative — that that belief wasn’t reasonable.
These are the fundamental reasons why the conviction rate for rape is so low, and why police and prosecutors lay charges in only a small minority of the cases reported to them by victims. I work with many rape survivors. As soon as there is any hint of complexity in their story around consent (she was drunk; she agreed to a kiss or foreplay but not sex; she agreed to share a bed but not have sex; and so on and so on), the police routinely decide that it’s too hard and decline to prosecute.
As the rate of reporting goes up (which it is, significantly), the rate at which survivors are being told that the police won’t press their case goes up too. When that happens, we often seek a review on the survivor’s behalf. We have yet to have a case where the decision changed, or where we have been able to get reasons from the police or prosecutors more fulsome than: “We didn’t think there was a strong enough chance of obtaining a conviction.” Well, duh.
This is not the fault of the police. They’re being realistic. They know how appallingly retraumatising the criminal justice process is for survivors, and they don’t want to subject them to it unless there’s a strong prospect of success.
The changes to the law NSW made and Victoria is about to copy have two significant elements. First, the law will now provide that if the victim did not say or do anything to communicate consent to the particular sexual act, they are deemed to have not consented. Second, if the accused took no steps to find out whether the victim consented, then their belief in consent was not reasonable.
The idea is to further close the opportunity for an accused to claim reasonable ignorance when their victim doesn’t physically or verbally resist his advances. It still leaves a wide gap in reality; I reckon it might increase the conviction rate from less than 1% of all rapes to something slightly higher but still less than 1%.
The Victorian Criminal Bar Association and Law Institute have both come out in opposition to the changes because of the risk of “unintended and unfair consequences”. They claim the existing law already entrenches affirmative consent (it doesn’t), and that these further reforms try to “make black and white… romantic interactions [that] might involve subtle movements and gestures”.
As the bar association’s chairman, David Hallowes SC, asked in The Age: “Have you ever woken a partner from sleep with a kiss? Have you been drunk with another person at a party and engaged in a sexual encounter where neither of you recalls the exact details of the event the following day?”
He goes on: “Either no steps were taken to ensure consent in the example of a waking kiss, or the accused and/or the complainant cannot recall the steps taken.”
Well, kissing your partner is not sexual assault, so that’s not an example at all. As for the drunken encounter, you either believe in the fundamental principle of bodily autonomy or you don’t. A person who is so drunk that they can’t remember anything later cannot give consent at all. That’s what the law already says. Consent is consent is consent. It’s not nebulous; it is real, and it can be communicated or withheld. If it is not communicated, then what happens next is a violation.
“The Criminal Bar Association is concerned that these amendments will disproportionately affect teenagers and young adults, as they explore their sexuality and relationships and introduce alcohol into their lives. This is not to excuse sexual offending behaviour, but to question whether actions, in nuanced sexual encounters and relationships, ought to be made criminal if prescribed steps are not taken by an accused.”
The ”prescribed step” they’re talking about is the action of asking — and being sure — that the person you’re about to do a sexual act to or with is consenting to it.
The people who will be disproportionately affected by these reforms, to the extent that they may further reduce the opportunity to slip through the net of reasonable doubt, are rapists.
If you or someone you know is affected by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au. Lifeline is on 13 11 14 and Beyond Blue is 1300 22 4636.
