Yes means yes: An affirmative model of consent for NSW law
With legal definitions of sexual consent under review within NSW, UTS has made a submission recommending replacing the current legal framework in NSW with a ‘free agreement’ model of consent. Our view is informed by extensive work around understanding consent within our own university community and feedback from our diverse student cohort.
How well does the community understand what defines sexual consent? The #MeToo movement has significantly increased the focus on questions of consent and ethical sexual behaviour in recent times, and it is encouraging to see our laws moving to catch up.
Following a recent Four Corners investigation on ABC TV, the NSW Attorney General asked the NSW Law Reform Commission to review the state’s existing consent laws. The program focused on the case of a Sydney man Luke Lazarus, who was ultimately found not guilty of sexual assault, despite a jury and two judges finding that then 18 year old Saxon Mullins had not consented to sex with him in an alleyway behind his father's Kings Cross nightclub in 2013. Mr Lazarus’ legal team had argued that because Ms Mullins had not said 'no', he genuinely believed she was consenting to have sex with him. The case clearly highlights that, for many victims, the lack of clarity in the law about what constitutes consent continues to deny them justice.
UTS has submitted recommendations to the review, which can be read in full here.
The section under review is s 61HA of the Crimes Act 1900 (NSW), which lays out the legal framework around sexual consent. Reviewing it will assess whether to make amendments to the law, as well as simplifying or modernising the definition of consent.
Laws in all Australian states broadly define consent as free and voluntary agreement to sexual activity, but take different approaches to clarifying what that might mean. While this is a good foundation, many legal definitions of consent – including in NSW - do not outline the specific way that such agreement must be given. Rather, they define the context of consent and the ability to give consent.
Our extensive work with the UTS student community to embed a culture of respect and zero tolerance for sexual assault reveals that there is still a large degree of uncertainty around what constitutes consent. This is not necessarily a bad thing – among the key insights gathered are that students are genuinely seeking a better understanding of appropriate and lawful behaviour. It also shows that young people are actively engaging with the idea of consent, with acknowledgement of the complexity of this issue and its wider considerations, such as power and cultural norms.
Consultation with the UTS student body, undertaken by the UTS Design Innovation and Research Centre (DIRC), was carried out in the process of undertaking something no other Australian university has done – rolling out a Consent Matters training module to all 50,000+ members of our university community. The research represents the first in-depth qualitative analysis on sexual assault and harassment conducted at UTS, and was especially significant in its inclusion of student perspectives to inform decisions.
A training module alone cannot produce needed culture change, but it can form part of a wider range of initiatives to drive change. UTS has also introduced a series of other initiatives to promote a culture of zero tolerance.
In the face of uncertainty reported by students, and the fact that significant numbers of young people, including our students, continue to report non-consensual sexual encounters, there is a clear need for legal and social definitions of consent to be improved.
Legal precedent already exists for such improvements. Law reforms introduced in Tasmania in 2004, and in Victoria in 2006 and 2007, brought in an affirmative or free agreement model of consent to replace previous ‘passive’ models, based on the assumption that unless there is active resistance, consent may be assumed. Under a free agreement model, proof that the complainant did not communicate consent is sufficient to establish absence of consent.
In other words, the free agreement model relies, in simple terms, on a clear and unequivocal ‘yes’.
Whether you call it ‘affirmative consent’, ‘free agreement’ or ‘active consent’, the crux of this discussion – especially important in terms of legal interpretation – is whether consent needs to be explicit or implicit.
Moving towards a ‘free agreement’ model of consent laws in NSW, like that of Tasmanian and Victorian jurisdictions would be an important step in creating greater clarity in the community about what constitutes consent – specifically that an active verbal indication of consent is necessary before engaging in sexual activity.
Requiring affirmation can contribute towards creating a culture of respect.
UTS supports amending s 61HA to provide greater clarity, simplicity and transparency around what constitutes consent. This will help increase confidence in the ability of the police and legal system to deliver justice to victims of sexual assault.
Of course, legislative change must be accompanied by community education. A comprehensive program to produce awareness in the NSW community around the meaning and effect of any new legislation is vitally important if we hope to bring about cultural change to reduce rates of sexual assault. Ideally, this should begin in primary and secondary schools, and requires a joint effort by State and Federal Governments, as well as community institutions to implement.
With revelations around sexual assault, rape culture and sexism featuring in headlines on an almost weekly basis, and a serious international public conversation about sexual consent taking place, reviewing the laws around sexual consent is timely, and we welcome the additional scrutiny in NSW. We hope that this opportunity results in improved clarity and contributes towards improved legal handling of sexual offence cases.