What do the new reforms entail?
Under the new affirmative consent model, a person must do or say something to affirm they have consent before sex occurs. This can broken down into the following:
- A person does not consent to sexual activity unless they said or did something to communicate consent
- An accused person’s belief in consent will not be reasonable in the circumstances unless they said or did something to ascertain consent
What does consent mean?
Consent is understood to be a free and voluntary agreement, but the new affirmative consent laws make it clear that it must be present when sex occurs. The reforms also stipulate that a person has the right to withdraw consent at any point; make clear that if someone consents to one sexual act, it doesn’t mean they’ve consented to other sexual acts; clarify the definitions of “sexual intercourse”, “sexual touching” and “sexual act”. And clarify that a defendant cannot rely on self-induced intoxication to show they were mistaken about consent.
Why are these new reforms significant?
The affirmative consent model will better serve victims and survivors of sexual assault. It’s hoped that in implementing the new reforms, hurdles in rape and sexual assault trials, like those experienced by Mullins, will be overcome, such as those which see an offender have “reasonable grounds” for believing the complainant had consented.
The government also announced that it plans to introduce five new jury directions for judges to give at trial in order to address misconceptions about consent and ensure a victim’s evidence is assessed fairly.
How do the laws differ from current laws on sexual consent?
Previous laws found a person guilty of sexual assault if they knew the other person wasn’t consenting, if they were “reckless as to whether” they consented, or if there were no reasonable grounds for believing there was consent. As Saxon Mullins proved with her own story, this was deeply problematic and saw Luke Lazarus’ guilty charge overturned as the judge found he had a “genuine belief” that Mullins consented.
When will the law reforms come into effect?
The laws are set to be introduced to parliament later this year, with The Guardian suggesting it could be between September and December.