Sexual assault reform is consistently a challenging issue for policy makers and the general community, with varying intentions and perspectives caught up in the continual debate for stronger and clearer laws and more reliable paths to justice for victims. The calls for review of sexual assault legislation in New South Wales, Queensland and Victoria in recent years have been part of one of the greatest social movements in modern history — the Me-Too Movement — that has effectively illustrated just how widespread sexual assault is in contemporary society. However, what is also clear is that government and community responses to consent laws vary across the Australian jurisdictions.
This post focusses on the intentions of governments in setting the agenda for change through their pre-inquiry setting of terms of reference, and their post-inquiry response to recommendations. I am especially interested in community responses to the actions of governments. Terms of reference are often over-looked in media coverage and popular discussions, but their scope – varying from conservative to progressive – seems to influence the number and breadth of recommendations made by law reform commissions, and this can have implications for how the community responds. Whilst the NSW Law Reform Commission and the Queensland Law Reform Commission have released their reports, the Victorian Law Reform Commission’s report is due later this year.
NSW terms of reference and Government intentions
Saxon Mullins’ appearance on ABC 4 Corners ‘I Am That Girl’ was the pivotal moment within the Australian #Me-Too Movement that sparked public debate on the need to change the conversation around consent. It triggered Government action to review definitions of consent and knowledge of consent and determine if the law should be amended to better protect victims. The terms of reference given by the Government to the NSWLRC focused on whether to amend section 61HE, its practical application and the impact of case law developments with a particular focus on the experiences of sexual assault survivors. While the Law Reform Commission went about its business for approximately 18 months in developing the report, sexual assault survivors and advocates were optimistic about positive legislative change.
What were the changes and how did the community respond?
In total, forty-four recommendations were made by the Law Reform Commission, with all forty-four supported, or supported in principle, by the NSW Government. The argument can be made that since the terms of reference were relatively wide in scope, the recommendations were able to be progressive, and address a broader range of concerns, suggesting a possible link between the scope of the terms of references and the quality of recommendations made. Is this a plausible link or simply just a coincidence?
There were two key changes made by the Commission which have had a positive community response: a communicative model of consent and a change to the no reasonable grounds test. Dr Rachel Burgin, Director of Rape and Sexual Assault Research and Advocacy (RASARA), claims that NSW is now leading the way in sexual assault reform whereby the burden of proof is now shifted from the victim to the perpetrator to take steps to obtain consent. Saxon Mullins has also responded positively to the reforms, asserting that the changes are a huge win for survivors and will allow victims to receive a sense of justice in sexual assault cases — rather than the ending she personally experienced. NSW Police Commissioner Mick Fuller also endorsed the reforms, expressing the view that they will provide certainty to victims and police when they follow through with the prosecution process. The overwhelmingly positive response from the community as a result of the proposed move to a ‘yes means yes’ model suggests that community expectations were satisfied with the actions from the NSW Government.
Queensland terms of reference and Government intentions
Whilst NSW was relatively progressive in its approach to reforming consent laws, Queensland took a much more conservative approach. This was reflected in the limited terms of reference, which only asked the QLRC to examine the definition of consent and the excuse of mistake of fact. Even though reform advocates were rightly disappointed, it should have come as no surprise that the Commission’s recommendations were only for modest statutory changes.
What were the changes and how did the community respond?
In total, all five recommendations were supported by the QLD Government. Two key changes were made as part of the Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Act 2021: consent can no longer be assumed if a person does not verbally reject a sexual act and consent can now be withdrawn by words or action once the act has begun. Acknowledged by Attorney-General Shannon Fentiman as an “important first step”, the new changes have largely disappointed the Queensland community who felt that the affirmative model of consent should have been pursued as part of the law reform. An open letter was penned to the Premier Annastacia Palaszczuk and Fentiman criticising the laws as “unfit for purpose” and demanded that Queensland women experience the same protections that are in place in Tasmania and Victoria through the affirmative consent model. Signed by signatories including the Queensland Sexual Assault Network and Ending Violence Against Women Queensland, the letter represents the community uproar that resulted following the release of the Commission’s report.
The disappointment was also felt among politicians, including Greens MP Amy MacMahon, who slammed the amendments for allowing defendants to claim they thought their actions were okay due to outdated rape myths. Additionally, Women’s Legal Service chief executive Angela Lynch commented that the report failed to listen to survivors and allows for the laws and system to be “weighted in favour of the perpetrator”. The poor community response to the modest reforms was one of the catalysts for the establishment of the Women’s Safety and Justice Taskforce. The taskforce will re-examine consent laws in Queensland and provide an opportunity for victims to come forward and share their stories as a means of informing further reform towards better laws that learn from the experiences of those who have been failed by the current system.
What about Victoria?
Based on how the community has responded in NSW and Queensland to the recommendations supported by Government, the Victorian community’s response to the much anticipated VLRC report is of interest. Expectations are high, noting that, of the three commissions, Victoria’s terms of reference were the widest and most comprehensive, including, but not limited to, actual or perceived barriers to reporting, procedures for reporting and public expectations from jury directions. If the observed pattern (in NSW and Queensland) is any guide, the Victorian public has good reason to be optimistic about the recommendations that will be contained in the report.
With the apparent link in play between terms of reference, recommendations supported by government and community reaction, there is a lesson to be learnt: government success is based on community response. Will the government learn to more readily address the needs of the community and victims or continue with what they perceive as a just system and effective laws? The #MeToo era has reinforced the need for change within sexual assault laws and now it is time for governments in all jurisdictions to step up and get with the times by ensuring that they have laws in place that prioritise the needs of victims.