NSW Council for Civil Liberties raises concern that affirmative consent laws could backfire

The NSW Council for Civil Liberties (CCL) welcomes the NSW Attorney General taking measures to address confusion around consent in sexual assault matters, but urges caution around proposed changes to the law. 

“Consent is an inherently difficult issue to determine in the courts,” said CCL President, Pauline Wright “and will remain so no matter how the law tries to define it. We have to be very careful about how we define consent, because changes could backfire.”

“Clarifying that a person is entitled to withdraw their consent at any time or to give consent to one kind of act but not another is a good idea, but care must be taken to ensure that changes do not have unintended consequences” said Ms Wright.

The definition of consent remains unclear in the community. According to the National Community Attitudes Survey 2017, “a concerning proportion of Australians are unclear about what constitutes consent, and the line between consensual sex and coercion”. The survey found that 15% of people believed rape within marriage was acceptable if the wife had first taken the husband into the bedroom and started kissing him before pushing him away; meanwhile 12% of respondents agreed with the statement that “Women often say ‘no’ when they mean ‘yes’.

The proposed changes are in response to recommendations made in the NSW Law Reform Commission’s (LRC) Report 148. The key reforms include stipulating that:

(a)  a person does not consent to sexual activity unless they said or did something to communicate consent, and
(b)  an accused person’s belief in consent will not be reasonable in the circumstances unless they said or did something to ascertain consent.  

“The requirement in (b) that something was said or done to ascertain consent goes beyond the LRC recommendation,” said Ms Wright.

“Both parties must obtain consent, so these provisions could be misused by coercive, controlling men and weaponised, allowing them to accuse their partners of raping them if they did not actively do or say something to ascertain consent. This provision could perversely see more women in the courts accused of rape.”

Similar provisions are already in place in Victoria, where issues around consent persist. In one disturbing recent case, a man successfully defended a rape case by saying a sleeping woman’s response indicated consent. Despite the court accepting the woman’s evidence that she thought the man was her husband until she opened her eyes and put a stop to the incident, the man’s rape conviction was overturned.

Tasmania’s consent laws are commonly seen as the gold standard, and the affirmative consent provisions proposed in NSW are modelled on them. But even in Tasmania, the issue of consent continues to be contested in sexual assault trials.

Contacts in relation to this statement

Pauline Wright

President NSW CCL

0418 292 656