NSW Just Had A Major Change in Sexual Consent Law — Here's What That Means And What Comes Next

;A lot will depend on what the courts make of this.  A sexual encounter is often initiated by touch (kisses etc) rather than by words.  So are such encounters now illegal?

Maybe if the law applied only to people who had not previously had sex, it might makes some sense

Last night in the Legislative Assembly of NSW, a model of affirmative consent was approved. This means that NSW is one step closer to changing sexual consent laws for the better.

Under the new Bill, proposed by NSW Attorney-General and Minister for Prevention and Sexual Violence Mark Speakman, a person only gives consent if "at the time of the sexual activity, they freely and voluntarily agree to the sexual activity", and if it is communicated clearly.

Jenny Leong, the Greens spokesperson for Women's Rights in the NSW Parliament, excitedly announced that the State Parliament voted an "enthusiastic yes" to the Bill.

Jenny Leong and Lucinda Hoffman stand outside NSW Parliament representing sexual assault victims© Provided by Are Media Pty Ltd Jenny Leong and Lucinda Hoffman stand outside NSW Parliament representing sexual assault victims
What does the affirmative consent bill mean?

This Bill recognises that:

(i) every person has a right to choose whether to participate in a sexual activity,

(ii) consent to a sexual activity must not be presumed,

(iii) consensual sexual activity involves ongoing and mutual communication, decision-making and free and voluntary agreement between the persons participating in the sexual activity.

Jenny has been particularly instrumental in driving this change. This morning, in light of the news, she reflected on how revolutionary the Bill would be if it were to become law.

"The Bill puts victim-survivors at the heart of the law, and removes rape myths and assumptions from the Crimes Act. It removes the patriarchal assumption that anyone is entitled to sex without the active, enthusiastic consent of the other person," she said.

"This is a significant moment. This is a very significant reform," Ms Leong said. "It means that it can no longer be assumed that someone consents to having sex. The person who wants sex must be able to demonstrate that they took steps to ensure that the other person also enthusiastically consents to this," she continued.

What needs to happen now?

While this is a huge step forward, it's not the final step. Now, the Bill will be passed to the Legislative Council to be debated, either later this week or early next week. Once it passes through (assuming there are no amendments), the Bill will become state law.

If, however, the Legislative Council decides to make amendments, it will be passed back down to the Legislative Assembly to be debated again.

While the Bill is an incredibly important piece of the puzzle, Jenny reminds us that there are other crucial factors to consider.

"The law change in and of itself is not enough. Around that law reform there needs to be really strong education and training to ensure that the police, judiciary and agencies around the justice system are all aware of the reforms and are implementing them in line with those laws," she told ELLE this morning.

"We need to ensure that there is sufficient resourcing, policy changes and education in place, so that when this law comes into effect, we see a change in society," she continued.

how does affirmative consent differ to our current laws?

As the law currently stands, a person has committed sexual assault if they know the other person is not consenting, if they are "reckless as to whether" they consent, or there are no reasonable grounds for believing there was consent.

In 2017, NSW consent laws fell under intense scrutiny following the acquittal of a man accused of raping Saxon Mullins outside a Sydney nightclub. While the Judge agreed that Saxon had not consented to sexual intercourse, she ruled that her 'freeze response' had provided 'reasonable grounds' for the man to believe he had gained consent.

Following his acquittal, Saxon bravely came forward to tell her story and was the subject of a major Four Corners investigation. Here, after staying anonymous for the entirety of the trial, she told the entire world, "I am that girl." In doing so, she hoped to spark a wider conversation about the current consent laws in NSW, and how they were failing sexual assault victims.

Over the past few years, we have seen a major societal shift in our approach to sexual consent and the way in which we understand it, which means our laws need to be updated to reflect those attitudes. The affirmative consent Bill is a pivotal change, which if passed, will be instrumental in ensuring that cases like Saxon's do not happen again. 

It is hoped that it will also encourage victims of sexual assault to come forward and report their experiences with the knowledge that they will receive a just outcome. Our low reporting rates are a reflection of the mistrust people have in the current system, and it's something we desperately need to change.

If one thing is clear after last night's decision, it's that change is coming. It may have been a long time coming, but it's finally here. And, though they may not be inside parliament, we can never forget that it is the incredibly brave work of sexual assault survivors and advocates that continues to drive this change forward.

"While it's important to acknowledge the Attorney General in bringing the Bill, and the multi-partisan support for this Bill — it is critical that we acknowledge that credit for this reform sits with some incredibly strong survivor-advocates, feminists, experts and activists who have been through so much and who have never given up — and in particular survivor-advocate Saxon Mullins," Jenny said, in a statement this morning.

For now, we will patiently await the decision of the Legislative Council as the Bill moves into their hands, and soon, the interest of victims and survivors will be at the centre of our consent laws.


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