Content warning: sexual assault
Consent. The ‘C’ word.
I am laying out my intentions, plain and clear. I won’t lead you on. I won’t encourage you to keep reading to find out. No games, no tantalisation. No fun or flirting. I wouldn’t want you to get the wrong idea, or assume I’m asking for anything more.
I just want to talk about consent.
Under current law, this is how blatant a person must be to prove that they have not consented to sexual intercourse. Even if there is evidence the victim did not consent, a recent case suggests that if the accused perpetrator “honestly and genuinely” believed the victim was consenting, they will not be convicted.
In 2015, a jury found Luke Lazarus, now 25, guilty of raping a “moderately intoxicated” 18-year-old girl in the laneway behind his father’s Kings Cross nightclub two years prior.
In a judge-only retrial on May 4, 2017, the court recognised that the young woman did not consent. However, the judge found there were no reasonable grounds for Lazarus to believe she didn’t. His conviction was quashed. But what of the victim? Does this mean it wasn’t rape?
This case, and the legislation underpinning it (s61HA(3)(c) of the Crimes Act 1900), set a dangerous precedent: it is implied that proving sexual assault and proving lack of consent are not the same thing under the law. This calls into question whether our laws truly reflect community standards, and whether the justice system effectively protects victims, offenders, and society.
In recent years, the law has shifted away from a ‘passive’ model of consent, which meant consent was assumed unless there was active resistance such as fighting and screaming.
According to the Australian Institute of Family Studies, today’s laws reflect a ‘positive’ model of consent, meaning consent to participate in sexual activity cannot be demonstrated by merely “submitting to sexual activity, or not actively saying ‘no’.” Rather, “the consent of the other party in a sexual encounter should never be assumed, and should actively be sought and affirmed.”
This seems logical and reasonable. However, it directly contradicts what occurred in the recent court case, where, during court questioning, Lazarus was asked: “You recall her saying [stop] shortly after you penetrated her?” He replied: “She gave words to that effect, yes.”
“That by itself would be enough to constitute the configuration of sexual intercourse without consent,” Nicholas Cowdery, former Director of Public Prosecutions (NSW), told Honi. “You can withdraw consent at any time. Any unwanted conduct after that is non-consensual.”
Just because a person engages in consensual kissing, body rubbing, or going to a ‘VIP section’ that turns out to be a laneway behind a club, as happened in the Lazarus case, it does not mean they are consenting to sexual intercourse.
Howard Brown, a well-known member of the Victims of Crime Assistance League and NSW Sentencing Council, agreed. Brown told Honi that the judge in the appeal “put an expectation on the victim, far more than what the law actually requires of them. I believe the victim gave sufficient notice to the applicant for him to know, full well, that she was not consenting.”
Brown also raised the issue of intoxication: in this case, the complainant had consumed either 10 or 16 drinks, a level of intoxication the court found to only be “moderate”, not high.
“People can be high range PCA (prescribed concentration of alcohol) on six drinks,” Brown said. “People know that when a person is affected by drugs or alcohol that it negates consent — everyone knows that.”
This ruling highlights what happens when the law considers the mindset of the accused at the time rather than applying the reasonable person test.
It is, according to Brown, “a retrograde step, because it has inadvertently set a precedent which is going to make life difficult for everyone.”
When asked if the law should be reformed, Cowdery and Brown gave different answers.
“I think the law is effective as it is,” Cowdery said. “I know from personal involvement there was a lot of argument in drafting s61HA … But the law has to be applied to cases where there may be enormous differences.”
Brown, on the other hand, said, “the way our law is currently drafted, it’s almost like a tipping competition. Cases like this highlight you can get away with it. My view is that for one victim to be treated badly by the system, means the system is failing.”
Both agreed that the difficulty lies in drafting and applying a law that strikes the balance between protecting the rights of individuals and the community, and reflects social standards.
In NSW, there were 3,951 separate sexual offence incidents reported to police during 2013. Of that number, 715 people were charged and 374 were found guilty; a conviction rate of 52 per cent for the state.
“People must have confidence in the law,” Brown said.
But how can we have confidence in the law when, even if you do not give consent, the accused can be gifted with a get-out-of jail-free card? Though the Lazarus case, and the principles surrounding it, are extensive, the fact remains that the judge who acquitted the accused did so despite finding that the victim had not consented. The lines remain blurred because the law instead rests on how the accused and the court have comprehended the victim’s words, actions and silence.
But the ‘C’ word is not ‘comprehend’.
The ‘C’ word is not ‘construe’.
The ‘C’ word is ‘consent’.
An appeal has been lodged by DPP, Lloyd Babb SC, to the Court of Criminal Appeal against the acquittal.
NSW Rape Crisis Centre: 1800 424 017