Sexual consent can’t be assumed: NSW government

Sexual consent laws in NSW will be reviewed after the state government questioned their adequacy, fairness, and clarity following a high-profile sexual assault case over an incident in a Kings Cross alleyway.
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NSW Attorney-General Mark Speakman referred the laws to the Law Reform Commission after saying there was a “systemic problem” with sexual assault reporting and convictions in the state.

“There is a reluctance by complainants to come forward. They’ve already been traumatised once, and they have to go through this re-traumatisation yet again,” Mr Speakman told reporters in Sydney on Tuesday.

His announcement comes less than 24 hours after Saxon Mullins spoke to the ABC about her ordeal as an 18-year-old virgin when she says she was anally raped by 21-year-old Luke Lazarus in an alleyway behind a nightclub in 2013.

Attorney General Mark Speakman speaks during a media conference concerning the law of consent in sexual assault proceedings outside the Supreme Court in Sydney. Photo: AAP Image/David Moir

“He pulled me back and said something … he said, ‘put your f**king hands on the wall’. And so I did,” she told Four Corners on Monday.

Over the past five years, Ms Mullins, now 23, endured two trials and two appeals with Mr Lazarus spending 11 months in jail after being convicted by a jury.

In the second trial, a judge found Mr Lazarus had no reasonable basis for believing Ms Mullins had not consented, but that Ms Mullins – in her own mind – had not consented.

Mr Speakman said Ms Mullins’ story raised questions about whether the law was adequate, clear and fair.

“(It’s) a concern that someone who has not consented can go through four court cases and not get a final resolution for the complaint,” he said.

“We know there is a systemic problem with sexual assault reporting and convictions in our law.”

In the review, which could take about a year, Mr Speakman wants the commission to look to other states, such as Tasmania, which has some of the toughest sexual consent laws in the country.

NSW Minister for Sexual Assault Prevention Pru Goward commended Ms Mullins for her bravery in sharing her story, saying sometimes women in these situations are too afraid to say “no”.

But it doesn’t mean consent has been agreed to, Ms Goward said.

“You must explicitly ask for permission to have sex and if it’s not an enthusiastic ‘yes’ then it’s a ‘no’,” Ms Goward said alongside Mr Speakman.

“It is not enough to assume that because your victim did not say ‘no’ that she has, in fact, said ‘yes’.”

Ms Goward is calling for discussions in schools about what consent means and the importance of explicit conversations.

Greens MP Dr Mehreen Faruqui welcomed the law review and insisted consent must be redefined as active, positive and voluntary.

“Sexual violence persists in our society and we must do everything we can to change this, leading with changing our laws coupled with education and awareness around positive and active consent in the community and within the justice system,” she said in a statement on Tuesday.