The NSW government is taking a step forward with sexual assault law reform. The proposed measures, first announced late last month, are being termed ‘affirmative consent’ laws for the way they shift the onus onto the perpetrator in a criminal trial.
Previously, a perpetrator could plead that they had ‘a reasonable belief in consent.’ This could bring all sorts of speculation about the people involved and their relationship(s) into the courtroom.
Now, a perpetrator must show what actions they took to ensure that they had consent. As Attorney-General Mark Speakman chastely put it, ‘The clearest example would be to say, “Would you like to make love?”‘
According to Pro Bono Australia, ‘A failure to do or say something (that is, to “take steps”) to ascertain consent means that any belief in consent will not be reasonable.’ In short, from ‘no means no,’ the changes mean that in NSW at least, ‘yes means yes.’ A lack of expressed opposition from the victim is no longer enough.
Affirmative consent in NSW takes its lead from Tasmanian law. For the past two decades in Tasmania, it has not been a defence against rape to say that a perpetrator’s ‘reasonable belief’ that they had consent was based on the perpetrator being intoxicated, or if they failed to ‘take steps’ to confirm they had consent.
Shock Jocks Muddy the Waters on Affirmative Consent
Kyle Sandilands, News Corp and SMH (in an op-ed) have all focused critically on the proposal to criminalise sexual assault if consent was under a false pretence. This will supposedly include any kind of self-aggrandizing lie told in the lead-up to sex.
But the Law Reform Commission report to which the reforms respond make it clear that’s not the case. The reform intends to capture sexual offences that occur by virtue of fraud; their example is agreeing to pay a sex worker then reneging afterwards.
According to the Commission, “Fraud is a concept that is well understood in the civil and criminal law, and does not extend to cases of trivial or less serious deceits. The criminal law has historically distinguished between fraud and ‘puffery’…lies about a person’s marital status or occupation would most likely be viewed as puffery.”
So there you have it. Affirmative consent and puffery are in; assuming consent and fear-mongering about consent reform are out.
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