No silver bullet to improve understanding of consent
Maeve Bannister |
Australia’s patchwork of sexual consent laws has created a culture where confusion and misunderstanding is rife, fuelling perpetrators’ ability to exploit them.
That’s the message from consent advocates, anti-violence groups and rape survivors to a parliamentary committee investigating how to tackle stubbornly high rates of sexual assault and low numbers of convictions.
Over three days, the committee examined the merits of harmonised consent laws across the states and territories, the adequacy of consent education in schools and justice system responses to sexual assault complainants.
Advocates want a nationally consistent definition of affirmative consent, a model which requires people to take steps to ensure all parties have agreed to a sexual act.
NSW, Queensland, Victoria, Tasmania and the ACT have adopted some form of communicative or affirmative consent laws, while WA, SA and the NT have not.
No to Violence – an organisation working with men to change their abusive behaviour – said it was common for perpetrators to exploit weaknesses in the justice system to their advantage.
“A clear and consistent approach to consent will reduce the potential for perpetrators to engage in systems abuse, which results in further harm to victim survivors through the legal system,” chief executive Jacqui Watt said.
Consent Labs co-founder Angelique Wan agreed more consistent laws would help teach young people about their responsibilities.
“It has been incredible, since affirmative consent has been adopted in NSW, to be able to say to students ‘this is now the expectation of the of the law’,” she said.
“It’s not just a moral or an ethical expectation that we urge you to consider, but it is also a legal expectation.”
Rape survivor Andrew Doherty said victims should not have to look at “GPS coordinates” to see whether or not they would be entitled to some form of justice.
But Australia’s top legal body warned there was limited evidence to suggest uniform consent definitions would result in higher reporting and conviction rates of sexual assault.
Law Council of Australia president Luke Murphy said strengthening victim-survivor support services through increased investment in the justice system would result in tangible improvements.
The council supported a communicative consent model, which still required positive consent from both people involved but did not have the extra element of requiring an accused person to show what they did to establish consent.
Liberty Victoria president Michael Stanton said young people were likely to be disproportionately affected by proposed changes to affirmative consent laws.
“(Affirmative consent) matters are fraught and complex, with increased complexity comes the increased potential for both error, re-trials and substantial miscarriages of justice,” he said.
“We must be vigilant that fundamental protections including the right to silence and presumption of innocence are not eroded.”
Criminal justice expert Rachael Burgin said the justice system and its officers were resistant to change.
“There’s no evidence that affirmative consent undermines the presumption of innocence and it certainly doesn’t reverse any right to silence, in that it doesn’t change laws around whether a person has to take the stand,” she said.
“There is no evidence to support that it will result in increased wrongful convictions.”
Yet all witnesses agreed law changes on their own would not be the silver bullet to address the epidemic sexual assault rates.
Pervasive rape myths, insufficient consent education in schools and little to no regulation of pornography all contributed to the problem.
The number of Australians who believe women lie or exaggerate reports of abuse and rape is also the highest of any Western nation.
Investigative journalist Jess Hill said Australia’s consent laws lacked accountability which meant boys were being taught from an early age that they could get away with rape.
“You can fill the MCG twice over with all the women and girls raped in a single year in Australia and the men convicted of rape would fit into the members’ bar each time,” she said.
While legal frameworks relating to sexual violence were predominantly a state and territory responsibility, the “scale and severity of sexual violence in Australia” required national leadership.
A national plan, released in 2022 and led by the Department of Social Services, underpins the federal government’s strategy to address family, domestic and sexual violence.
The committee is expected to hand down its final report in mid-September.
1800 RESPECT (1800 737 732)
National Sexual Abuse and Redress Support Service 1800 211 028
AAP
