NSW adopts affirmative consent in sexual assault laws. What does this mean?

New South Wales Attorney-General Mark Speakman has announced a suite of reforms to consent law, following a two-and-a-half year review by the Law Reform Commission.

The review was prompted by survivor-advocate Saxon Mullins, who endured two trials and two appeals, only to end up with no legal resolution to her rape case. Since then, Mullins has advocated for affirmative consent.

However, the final report from the commission, released in November last year, failed to recommend this standard. Despite this, Speakman has stood alongside Mullins with the promise of a bill that goes beyond the recommendations of the commission — and will make affirmative consent the law in NSW.

Read more: NSW law reform report misses chance to institute 'yes means yes' in sexual consent cases

What is affirmative consent?

Affirmative consent means that consent is actively sought and actively communicated. This approach shifts from a “no means no” standard to “yes means yes”, in that an individual seeking to have sex with another person must obtain clear, expressed consent from them before (and while) engaging in a sexual act.

In other words, submission without active, participatory agreement is not sufficient to claim that consent was given. In practice, this could be something as simple as asking someone if they want to have sex.

This type of consent standard shifts the emphasis from the actions of the victim-survivor to those of the accused. This is important, since we know that the same rape myths and gendered stereotypes that permeate society can be brought sharply to bear in sexual assault trials.

Despite this, and international shifts towards affirmative consent, governments across Australia have been hesitant to legislate it, and Law Reform Commissions are apparently loathe to recommend it.

In addition to the NSW Commission, the Queensland Law Reform Commission earlier this year also failed to recommend affirmative consent, opting instead to recommend no substantive change to consent law. That report was heavily criticised as relying largely on research that had not been peer-reviewed, and ignoring recent Australian academic research.

Read more: Queensland rape law 'loophole' could remain after review ignores concerns about rape myths and consent

The changes in New South Wales

The bill announced today changes that course. Speakman has presented reforms that go beyond the Law Reform Commission’s recommendations and, if enacted, would legislate affirmative consent in NSW.

This is because the bill requires that a person who is seeking to raise the defence of “reasonable belief in consent” must demonstrate what actions they took or what words they spoke to ensure they had consent. A failure to do or say something (that is, to “take steps”) to ascertain consent means that any belief in consent will not be reasonable.

This is affirmative consent in action - and it takes its lead from the law in Tasmania, which has operated without controversy for nearly two decades.

It is also where other jurisdictions fall down. Victoria, for example, is often heralded as a leader in affirmative consent. However, my research analysing rape trial transcripts from the County Court of Victoria shows that defence counsel continue to rely on narratives of victim resistance or “implied consent”, that construct women’s ordinary, everyday behaviour as indicating consent.

This is, as I have argued, because Victoria does not require an accused person to show they did anything to ensure their potential sexual partner was consenting. If a person did take steps to ascertain consent, they are able to raise this in their defence.

However, the reasonableness of a belief in consent, in Victoria, can be built exclusively on the accused person’s perception of the victim-survivor’s conduct - whether she was drinking alcohol, wearing certain types of clothing, dancing near him or not offering enough “resistance” to his sexual advances.

The NSW government has sought to respond to these problems that continue to plague Victorian courts by making these consent steps mandatory. This means the NSW provision will act as a protection to victim-survivors in their pursuit of justice, and will protect from prosecution accused people who, even in their mistake, acted reasonably.

What does this mean?

The ethos that a person who wants to have sex should make sure their potential partner also wants to should underpin both our responses to and prevention of sexual violence.

This approach can set the framework for how we teach young people - or “re-teach” older generations - about consent, relationships and sexuality. In the context of a rape trial, the hope is that affirmative consent will go some way to ensuring that attitudes which blame women for their victimisation, and excuse sexual violence, do not play a role in the outcome.

This does not, as some may claim over the next few months as we see this bill progressing through parliament, reverse the onus of proof. People accused of sexual assault will continue to be afforded their right to the presumption of innocence.

However, this bill does place an evidential burden on an accused person who seeks to raise a defence of reasonable belief in consent to show they took steps. The onus remains on the prosecution to disprove this once the defence has discharged its evidential burden.

A win for survivors

The NSW reforms are a huge win for survivors, particularly Saxon Mullins, who catapulted consent onto the public and political agenda.

But it is not the end of the story. The law, while holding potential to set community expectations, is - and should be - the avenue of last resort. Attention must also be paid to preventing sexual violence before it occurs.