Trigger Warning: this article deals with sexual assault and may be triggering to some readers.
The New South Wales government has just taken a “significant” step forward in reforming sexual consent laws after the Crimes Legislation Amendment (Sexual Consent Reforms) Bill passed the legislative assembly on Wednesday, November 10.
The Bill, which was introduced to the NSW parliament on October 20, mandates that a person must take active steps to ensure they have established whether a person wants to have sex before they engage in the act.
Speaking to marie claire Australia hours after the Legislative Assembly passed the Bill to the Upper House (also known as the Legislative Council), Greens Spokesperson for Women, Jenny Leong MP said it was “a massive step forward” in this space.
“[If the Bill is passed], that means it can no longer be assumed that someone is consenting. The person who is wanting to engage in intercourse needs to be able to demonstrate that they’ve taken reasonable steps to gain consent,” she explained.
The Upper House is expected to meet and discuss the Bill later this week or early next week. If it is passed by the council, the Bill becomes law in New South Wales.
It comes after years of campaigning for an amendment to the current legislation, particularly after the laws around consent posed a grey area in the 2017 acquittal of a man who was accused of raping then 18-year-old Saxon Mullins outside a Kings Cross nightclub in Sydney.
At the time, the judge agreed that Mullins had not consented to sex, however her response in the situation to ‘freeze’ (which is a common behavioural response when someone finds themselves in a situation of fear) provided reasonable grounds for the man to believe she was consenting.
“[The 2021 Bill] will mean so much to so many survivors who understand firsthand the difference this Bill can make,” Mullins said in October.
“It has been three years since I came forward to share my own story, and while progress can feel slow, I know this Bill is a huge leap forward and will see NSW leading the way in consent law around the world.”
Following the Legislative Assembly passing the Bill last night, Mullins Tweeted: “The wonderful @jennyleong speaks for me today. In using her voice she brings all survivors into parliament with her. I support Jenny 100% in these amendments.”
Indeed, Leong has also long been campaigning for amendments to the definition of consent in the Crimes Act.
In February, the Greens MP wrote an open letter to the Attorney General outlining the need for constitutional change: “Sexual offences in NSW are significantly under-reported and conviction rates for those offences that do make it to court are staggeringly low,” she wrote.
“People who have experienced sexual assault in NSW deserve justice and it is clear that the current legislation is a significant barrier to that.”
More than 2000 people signed this letter.
In March, consent education advocate Chanel Contos authored a petition calling for urgent consent law reform and for better consent education to be taught in Australian schools. Leong sponsored the parliamentary petition, which was signed by 20,986 people.
Then in October, when the affirmative consent Bill was finally introduced to parliament by the NSW Attorney General Hon. Mark Speakman, he stated: “No one should assume that someone is saying yes just because they don’t say no or don’t resist physically”
“People are entitled to expect that if someone wants to have sex with them then the other person will ask. If the first person hasn’t said something, or done something, to communicate consent, then that other person will take further steps to ascertain consent. This is just a basic matter of respect.”
CEO of Rape and Domestic Violence Services Australia, Hayley Foster pointed out that the Bill, “Also emphasises that the absence of physical or verbal resistance does not mean consent is given, which is essential as many victims report suffering a ‘freeze’ response during these moments.”
What does the Affirmative Consent Bill mean?
Per an official statement from NSW Government, the Bill would make it a legal requirement for a person to clearly communicate consent.
This is particularly significant in the justice process, because it will make clear that a person “doesn’t consent to sexual activity unless they said or did something to communicate consent,” the official statement affirmed.
If passed, the Bill will also provide five new jury directions for judges to give at trial to address common misconceptions about sexual assault and behavioural responses, and to ensure the evidence of complainants is assessed fairly. It will also provide targeted education programs for judges, legal practitioners and police in dealing with victims of sexual assault throughout the judicial process.
New South Wales is the second Australian state to strengthen its laws around consent after Tasmania. In other states, there are preliminary discussions around changing its consent laws, but Leong hopes New South Wales’ current discussions in this space will spur them on faster.
“We know other jurisdictions are debating this right now. Its absolutely critical that we see these laws passed across Australia to protect the rights of women from sexual assault,” she concluded.
If you are experiencing sexual abuse or other unwanted behaviour, please contact Rape & Domestic Violence Services Australia.