Public Education On Sexual Consent Law Needed, Experts Warn
"We need to engage with the population who will be most impacted about this"
Legal experts have called for a public education campaign around sexual consent, with fears young people do not understand the boundary where a consensual encounter can turn into a criminal offence.
New South Wales is currently reviewing laws around consent, following high-profile sexual assault cases in recent years.
The state's attorney-general asked the Law Reform Commission to review the Crimes Act provisions around sexual assault and consent, with a consultation paper to be published following a submission period which closed late June.
“We can’t legislate for respect, but we can examine whether the consent provisions in our Crimes Act require simplification and modernisation," said NSW attorney-general Mark Speakman in May.
"You must explicitly ask for permission to have sex. If it's not an enthusiastic yes, then it's a no," Minister for the Prevention of Domestic Violence and Sexual Assault, Pru Goward has said.
NSW law states sexual consent is when a "person freely and voluntarily agrees to the sexual intercourse", and that consent is not given if the person is "reckless" as to the other person's consent or "has no reasonable grounds for believing that the other person consents to the sexual intercourse."
Doug Humphreys, president of the NSW Law Society, told ten daily consent laws were "tricky". In a submission to the review, Humphreys said the Law Society does not support changing current law, and claimed it "strikes the right balance" between the accused and the defendant. However, he said a wide public awareness campaign was needed to educate people about how consent laws work.
"The law can only do so much. The criminal law is a very blunt instrument." he told ten daily.
"We are far better off engaging in a discussion with young women and men about values and being careful, respectful and not making assumptions."
"We do need some really good markers to understand when barriers are being crossed."
Annie Cossins is a Professor of Law and co-convenor of the Gendered Violence Research Network at the University of NSW, and one of Australia's leading experts on sexual assault law. She told ten daily she was part of the group that brought in current NSW consent laws, and said a public education campaign would be useful to inform people how laws work and when a consensual encounter turns into a crime.
"Laws are only relevant in court, not in day-to-day life. Who reads the Crimes Act? Unless there’s a widespread education program, who knows about the laws?" she said.
"It would be really interesting to ask young people how they understand consent."
Cossins said she did not support changing the legal definition of consent, but called for reform in the way courts considered how and when consent is given or withdrawn.
"We don't have laws that squarely put the responsibility on the person being charged. They need to be more responsible as to what steps they took to form that belief the person was consenting," she said.
"If we don't let doctors get away without obtaining your consent for a medical procedure, why should we let people get away with not taking into account getting consent? They need to consider whether the other person is too drunk or too scared to say no."
Cossins called for an court overhaul to place the evidentiary onus on defendants to prove they had obtained consent, which she said was a similar situation to a defendant in a murder trial having to prove they acted in self-defence or under provocation.
"We need the defendant in court to prove he took steps to obtain consent. Did she say yes? Where’s the evidence? Someone not running away doesn't mean free and voluntary consent. The defendant should have an onus to prove the steps they took. It’s really that simple," she said.
"The prosecution still has to prove beyond reasonable doubt but defendants frequently have an evidentiary onus in court. It's not unsual. If the defendant's argument is they thought she was consenting, what did you do to form your belief? Not just her behaviour, but what did you do? Did you ask? Did you check?"
Humphreys said he did not support changing laws in NSW to the type used in Tasmania, where consent must be obtained continually during a romantic encounter, but hoped law reform experts would consult with young people especially through the process.
"If we are to properly reflect community attitudes we need to engage with the population who will be most affected. We are mostly talking about younger people. I hope the NSW Law Reform Commission will try to reach out to younger people," he said.
"Anything we can do to raise community awareness of the issue and provide guidance can only be good."