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Keep the lawyers out of the bedroom

The New South Wales State Government in Australia is proposing a swag of new laws around sexual consent in an attempt to increase so-called sexual assault convictions. Firstly, it's not clear why we need to increase convictions. If you can't prove a crime, in a system that is actually meant to be rigorous and difficult for the accuser/Crown, then you can't prove it. That's just too bad in a free society, where the freedom of the citizen is - or at least should be - the default position.

Below is a transcript of an interview on Sky News Australia, between the NSW Attorney-General Mark Speakman and Sky's Peta Credlin, in which Mr Speakman tries to defend his proposals.

Notice how he tries to dress up criminal law changes as some kind of positive relationships counselling program. What patronising dribble.

Then we have issues like "freezing". How are you meant to know, prove or disprove, in an intimate encounter, whether someone has "frozen" or not?

These types of legal changes are ridiculous and tyrannical. They must be opposed and stopped.


Outlet: Sky News Australia

Date: 25 May 2021, 6.00pm

Presenter: Host, Peta Credlin (PC), interviews NSW Attorney-General, Mark Speakman (MS).

Topic: Sweeping changes to New South Wales consent laws

(Check against video:

PC: AG, thank you for coming on the show.

MS: Thank you.

PC: Practically speaking, how will this new affirmative consent model work?

MS: Well, in NSW we have a number of sexual offences. Each of them involves an “act” and a mental element for the accused. In the case of sexual assault, the “act” is sexual intercourse without consent and the mental element at the moment is that the accused either actually knew or was reckless about consent; knew there was no consent, reckless about consent, or didn’t have reasonable grounds to believe there was consent.

There are a number of changes we are proposing to make in NSW. Two of them are, what is consent – there will have to be something said or done by the complainant to constitute consent – and the state of mind of the accused – to have a reasonable belief that there is consent. The accused will have to have said something or done something that was reasonable in the circumstances to ascertain consent.

Now, I’d stress that the onus of proof is still on the prosecution. The whole case has to be proved beyond reasonable doubt. But, this is about holding perpetrators to account, where there hasn’t been communication and, more importantly, about shifting social behaviour. To make sure that people understand that in a respectful sexual relationship, you have to make sure that your partner is consenting. You just can’t assume because they’ve frozen, or they’re not offering any sort of physical resistance, which happened in the Saxon Mullins case, that they are consenting. So, it’s about a communicative model. In the end, having healthy, respectful relationships.

PC: How do you avoid though – I know you’re making it a positive affirmation of consent, but if there’s no other proof other than the word of one party against the word of the other party, how is it any different from where we are now?

MS: Well, obviously there are grey areas at the moment, because often an allegation of sexual assault by a complainant can’t be corroborated by anyone except the two parties to the alleged sexual encounter. That will continue to be the case, but I think you’ll see less of a grey area, because we will hopefully see less of these sorts of encounters because people will be communicating with their partners. People will understand that if you want to have a sexual encounter with someone you have to ask or do something to make sure that they are consenting. So, legal change is one thing, but what’s more important…

PC: Yeah, but let me just jump in there, sorry, AG… Let me just jump in there…

MS: Yep.

PC: But, you’re still … unless you’re asking people, ah, you know, at the point of the bedroom, to say something, and to video tape it, or to sign a piece of paper or sign someone’s iPhone … unless, at that point, you get more than just an orally communicated consent, when you turn up in a courtroom, if that’s in dispute, it is still the word of one party against the word of the other party, even with these changes, and that’s exactly where we are now.

MS: Well, you’re right. It is … often it will be the evidence of one party against the evidence of another party. But, there’s no suggestion you have to videotape consent, or get some kind of written contract. There already are these factual disputes. An accused will be protected by our jury system in NSW that requires a conviction beyond reasonable doubt and the onus is always on the Crown, but what we want to see in NSW is a model where people are talking to each other or acting in a way that they are ascertaining whether their sexual partner is consenting. And, what has happened in NSW in, for example, the Mullins case, we’ve seen cases were commonly a complainant will freeze, they won’t offer physical resistance, but they’re not intending to consent. And, in a case like that, if … it shouldn’t be that you just assume that there is consent.

It’s not about formalising relationships or being overly prescriptive. It’s just about … it’s not rocket science, just basic common decency and common sense. If you want to have sex with someone, you ask or do something to ascertain that they are consenting. You have them say something or do something that indicates consent. You don’t just assume it from the lack of resistance.

PC: Yeah, well, we do know that three per cent – three per cent – of sexual assault cases that go to police, in a police report, result in a conviction. Clearly, the motivation here is to increase convictions. Am I right?

MS: Well, that’s one factor, to increase the conviction rate, because, as you say, only three per cent of cases that are reported to police end up in a conviction. And, of course, the stats are even worse, because a large number of cases won’t be reported to police at all. So, it is about holding perpetrators to account, but, more importantly, it’s about developing social norms, so that if people want to have a sexual encounter, they say something or do something to ascertain that the other party is consenting. And you don’t just assume from the way they’re dressed or the fact that they’ve had a drink or they’re not offering physical resistance, or there’s no violence, that there has been consent. It’s basically about common sense and human decency.

PC: Yeah, I know. I just find it so sad that we have to legislate all of these things. It used to be the way people were brought up. But, maybe I’m getting old. Mark Speakman thank you very much for your time.


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