Politics

NSW Could Be The First State To Pass Affirmative Consent Laws In Australia

"No one should assume that someone is saying 'yes' just because they don't say 'no' or don't resist physically."

by Lavender Baj  21 October 2021
affirmative consent

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A new bill requiring affirmative sexual consent has been introduced in New South Wales Parliament, marking the first step in what looks to be a major change in consent law in the state.

Under the proposed legislation, which was introduced this week, people will need to actively receive consent before engaging in sexual activity. The move seeks to close the gap in what has long been considered a grey area in the eyes of the law when it comes to consent — a problem that has impacted many sexual assault and rape cases in the state.

NSW Attorney-General Mark Speakman, who first announced the proposed legislation back in May, introduced the bill on Wednesday.

“No one should assume that someone is saying ‘yes’ just because they don’t say ‘no’ or don’t resist physically,” said Speakman.

“People are entitled to expect that if someone wants to have sex with them, then the other person will ask. And 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. It’s time for the law to catch up with common human decency and common sense.”

“If you want to have sex with someone, then you need to do or say something to find out if they want to have sex with you too — under our reforms, it’s that simple,” said Speakman, asserting that this reform — if passed — will make sexual consent laws easier for everyone involved.

This doesn’t mean you’ll be forced to sign a waiver before getting intimate — whether it’s with your long-term partner or a casual sexual partner — but it does mean that the excuse of “they didn’t say no” will hopefully no longer cut it in a court of law.

The introduction of the bill comes after years of activism and campaigning from Saxon Mullins, who endured two criminal trials and multiple appeals following an alleged incident in Kings Cross back in 2013.

Although the court found that Mullins did not consent to the sexual encounter with the accused, Luke Lazarus, the ruling noted that he had mistakenly believes she had given consent.

Ultimately, Lazarus walked free without conviction.

Following the conclusion of the criminal trial, Mullins bravely shared her story publicly on ABC’s Four Corners in 2018, advocating for a change in legislation that would close this loophole in the legal system.

“Enthusiastic consent is really easy to determine, and I think if you don’t have that, then you’re not good to go,” Mullins told the ABC at the time.

“All you need to say is, ‘Do you want to be here?’ And very clearly, ‘Do you want to have sex with me?’

“And if it’s not an enthusiastic ‘yes’, then it’s not enough. If it’s not an enthusiastic ‘yes’, it’s a ‘no.’ That’s it. And then, you’re committing a crime. Simple as that.”

Mullins has spoken out following the bill’s introduction to NSW Parliament, expressing her emotions.

If passed, the reform will make it easier for victims to secure a conviction when they claim they were not consenting, putting the burden of proof on the accused to show they had affirmative consent, rather than the victim to prove they didn’t.

Help is available if you or someone you know has been impacted by sexual assault, rape or violence. If you require immediate assistance, please call 000.

You can speak to someone about sexual violence by calling the 1800 Respect hotline on 1800 737 732 or chat online.

You can reach Kids Helpline at 1800 55 1800 or chat online if you are under 25.