No enthusiasm for enthusiastic consent reforms

Like most people watching the I am that girl story on Four Corners a few months ago I felt enormous sympathy for the woman in question, Saxon Mullins. There is no doubt that the incident involving Luke Lazarus was devastating for her, and that this was only aggravated by the lengthy trial process that followed. It is easy to understand why the NSW Government wanted to do something, with the NSW Law Reform Commission being asked to review sexual consent laws to determine 'if the law needs to be amended to protect victims better'.

The problem here is that the something being considered may actually make things worse, not better. A key issue being considered by this review is whether NSW should introduce an 'enthusiastic consent' standard, also known as 'affirmative consent' or 'yes means yes' laws. The Minister for the Prevention of Domestic Violence and Sexual Assault, Pru Goward, has suggested that 'this is where the law in NSW needs to go', describing the standard as requiring a person to 'explicitly ask for permission to have sex. If it's not an enthusiastic yes, then it's a no'.

This is a significant departure from the existing legal standard in NSW, which defines consent as 'freely and voluntarily' agreeing to sexual intercourse. To obtain a criminal conviction for sexual assault in NSW it is necessary for the prosecution to prove not only that there has been sexual intercourse without the consent of the victim, but also that the accused knew that the victim did not consent. If an accused has reasonable grounds for believing that there was consent, the offence is not established. In their submission to the NSW review the Law Society of New South Wales opposed amending the legal definition of consent, stating that the existing law 'strikes the right balance'.

The current legal standard focuses on establishing an absence of consent, whereas an 'enthusiastic consent' standard inverts this by requiring consent to be affirmatively established in order to avoid liability. There are significant legal and practical problems with this approach, as I discussed recently in a video interview with Bettina Arndt.

The key legal issue is that enthusiastic consent laws undermine due process and the presumption of innocence. When we require consent to be affirmatively established we are starting from the presumption that there is no consent, meaning that all sexual intercourse is unlawful until proven otherwise. This is contrary to the fundamental legal precept that individuals are presumed to be innocent until proven guilty.

At a practical level, the problem is that these laws are simply not workable. They fail to account for the way that humans interact in reality, and they transform any sexual encounter into a potential legal minefield. They also unacceptably blur the line between a bad sexual experience and an unlawful one. A 'yes means yes' standard makes it disturbingly easy for an individual to re-evaluate a regretted sexual encounter and to retrospectively withdraw consent, with some advocates in the USA going so far as to claim that 'regret equals rape'.

Indeed, there are cautionary tales aplenty when we look at jurisdictions that have introduced this standard. Variations of 'yes means yes' laws have been adopted in a number of American States, including California and New York, and by an estimated 1,400 higher education institutions across the USA. There are countless examples of 'yes means yes' laws broadening the definition of sexual assault in a way that sacrifices fairness and balance in the attempt to support victims and secure convictions.

For example, Judge Carol McCoy found that the affirmative consent standard imposed by the University of Tennessee at Chattanooga 'improperly shifted the burden of proof and imposed an untenable standard upon [the accused] to disprove the accusation that he forcibly assaulted [the victim]'. These same types of concerns drove 28 members of the Harvard Law School Faculty to publish an open letter opposing a new sexual harassment policy introduced at Harvard University and was the reason for the American Law Institute rejecting in 2016 an attempt to amend the Model Penal Code to impose an affirmative consent standard.

The concerns that 'yes means yes' laws significantly broaden the definition of sexual assault and may lead to miscarriages of justice are not misplaced or far-fetched. Indeed, some advocates see this as the very purpose of such laws. For example, American journalist Ezra Klein acknowledges that the 'yes means yes' law 'creates an equilibrium where too much counts as sexual assault' but argues that 'its overreach is precisely its value'. He argues that to lower rates of sexual assault 'men need to feel a cold spike of fear when they begin a sexual encounter' and that it is necessary for the law's success that young men are convicted of sexual assault in 'genuinely ambiguous situations'.

This is the absolute antithesis of what our justice system is meant to be about. The most basic principle of our criminal law is the presumption of innocence, resting on the idea that it is better that 100 guilty men go free than one innocent man is convicted. The proposed enthusiastic consent reforms in NSW undermine this fundamental standard and should be rejected for this reason.