Ben Fordham Reckons Affirmative Consent Laws Are A “Recipe For Trouble”

New South Wales’ long-awaited and much needed affirmative consent laws come into effect today, and 2GB radio host Ben Fordham has already called them “a recipe for trouble”.

The new affirmative consent laws are a huge win for the state, decreeing that “consent is a free and voluntary agreement that should not be presumed” and that “ongoing and mutual communication” is paramount.

The laws are intended to be simple, but Fordham labelled them a “legal minefield”.

“From today, anyone engaging in intimate activity will need to give clear consent,” said Fordham. “The government wants you to have a conversation, or you can indicate consent through a gesture, a facial expression or a hand movement.”

Fordham appeared shocked that the law could also apply to married couples. “And by the letter of the law, this relates to everyone, even if you’ve been married to someone for 20, 30, 40 or 50 years,” he said.

After playing an interview between himself and Attorney General Mark Speakman, Fordham claims that “when things evolve without a conversation, that’s no consent”.

Speakman quickly clarified that affirmative consent does not necessarily need to be audible, and can be shown in several different ways. “Well, it doesn’t have to be a conversation, it can be a conversation, and that’s the clearest way, but it could be gestures, facial expressions, or hand movements,” said Speakman.

Fordham then questioned what, exactly, constitutes a consenting hand gesture.

“It could be hand movements, what is the hand movement, I wonder? A thumbs up? Or are they talking about some other kind of hand movement,” asked Fordham. “You may want to have a conversation about this today to make sure you know the rules.”

To further stress the apparent legal issues with affirmative consent, Fordham quotes leading defence lawyer Margaret Cunneen — who is currently defending ex-NRL player Jarryd Hayne in his high-profile sexual assault case. “[The new laws will] hold up the real cases with merit and be very unfair on genuine victims and anyone wrongly accused will have to wait longer to have his or her name to be cleared,” Fordham quotes Cunneen.

“I know they’re trying to do the right thing,” Fordham continued. “But when relationships go pear-shaped, sometimes people are prepared to go to extreme lengths to damage their former partner.”

Fordham said he hoped he was wrong, but the new laws could be a “recipe for trouble”.

New South Wales’ affirmative consent laws come after years of bravery and advocacy from rape survivor Saxon Mullins. Mullins tirelessly campaigned for a change in the legislation after the judge in her own sexual assault trial found that while she had not consented, the defendant had no reasonable basis for believing she didn’t.

In an interview with ABC radio, Mullins slammed the mentality of “genuine” and not “genuine” victims, which has been spread by Cunneen and others.

“I find that so offensive, I don’t think it’s my place, I don’t think it’s her place, I don’t think it’s anyone’s place to decide what a ‘genuine’ victim is. If somebody feels that they are a victim of sexual violence: they are,” said Mullins.

“I think this idea of false claims is so overblown, they are tiny when compared to the actual number of people who experience sexual violence in Australia.”