Leading lawyer Geoffrey Watson speaks out in favour of sex assault law reform

Sydney lawyers who broke ranks from the NSW Bar Association on sexual violence law reform last week have spoken out about why they felt compelled to act.

Geoffrey Watson SC is not a man who minces his words.

“Anybody who says the current sexual assault, criminal judicial system is working well has rocks in their head,” the former ICAC counsel assisting said.

The Sydney silk was one of 23 prominent barristers who broke ranks from the NSW Bar Association on sexual violence law reform last week and supported the move towards affirmative consent.

It was highly unusual for barristers to be publicly out of step with the association, which represents 2300 barristers across the state.

Geoffrey Watson says the legal system has failed sexual assault survivors.

But those involved said the issue was so important it couldn’t be ignored.

“I have spent my entire career observing an imbalance between money and power in the court judicial system,” Mr Watson told The Sunday Telegraph.

“All I can say is I would do anything in my power to correct it and it‘s gone wrong specifically in the area of sexual assault.

“I have no doubt about that.

“It seems to me the whole system works as a deterrent for the victims coming forward.”

NSW Attorney-General Mark Speakman announced earlier this month that he would reform the state’s sexual assault laws, including adopting affirmative consent.

It is hoped that means closing a legal loophole that allows someone accused of rape to argue they had a reasonable belief in consent – even if they didn’t take active steps to obtain that consent.

Under the reforms, which go a step beyond what the Law Reform Commission (LRC) had recommended after a lengthy consent law review, consent will mean saying or doing something to obtain consent.

Holly Leppard is a sexual assault victim. Picture: Sam Ruttyn

The Sunday Telegraph, through its campaign A Matter of Consent, has advocated for sexual assault law reform and highlighted several cases where victims were let down by the system.

That included Wollongong friends Holly Leppard and Jane, a pseudonym. The two young women were allegedly sexually assaulted by the same man but received very different outcomes in a case that rested on the complex issue of consent.

The consent reforms have been celebrated by survivors, advocates and police but legal groups, including the Bar Association aren’t sold.

President Michael McHugh SC suggested that the reforms would likely result in significant injustice and potentially criminalise consensual sex.

Mr Watson said he and other barristers “immediately expressed misgivings” about that stance.

While stressing he was not critical of the Bar Association, but simply disagreed on this issue, Mr Watson said people usually didn’t want to speak out against the group because it had a “political edge”.

After a call from Justin Gleeson SC, former solicitor general of Australia, Mr Watson learned there were other barristers who were equally disappointed.

Mr Gleeson showed “true leadership” in bringing the statement together, Mr Watson said.

“Across the group there are people with radically different politics,” he said.

“It’s not politically driven.

“They are united by one thing – that the current system is not working and needs to be improved.”

The CVs of the esteemed barristers who put their name to the statement vary greatly.

Gail Furness SC was counsel assisting for the Royal Commission into institutionalised child sexual abuse, Miiko Kumar works out of the Crown Prosecutor’s Chambers and Kate Richardson SC argued the same sex plebiscite case in the High Court

Mr Watson said law reform should not be about convicting people but “rather if we can, to modify their behaviour when it’s gone wrong”.

NSW Attorney-General Mark Speakman announced reforms recently around sexual assault. Picture: Tim Hunter

“I can remember a time when people drove around drunk,” he said.

“We introduced drink driving offences and created an education program and it worked really well.

“We modified behaviour.”

Asked about whether he should be practising criminal law to have an opinion on criminal law reforms, Mr Watson said: “That may be the point we are trying to make.”

“Maybe it shouldn’t be handed over to the criminal defence bar to make submissions about this point of law reform,” he said.

“This is generally socially important and not limited to the nuts and bolts of criminal trials.

“We are not talking from the point of view of criminal lawyers but as citizens, citizens with legal skills.”

In response to suggestions from some defence law groups that the consent reforms would be unfair to the accused Mr Watson said he “never been a great subscriber to chicken little theories”.

“The sky is not going to fall in,” he said.

Kate Eastman SC has acted for women in sexual harassment cases and survivors of sexual violence throughout her career.

Kate Eastman says we need to come at this issue from a human rights perspective.

She came at the issue from a human rights perspective.

“Having represented women who have experienced sexual harassment at work and in the community and victims of sexual violence …” Ms Eastman, also a member of the NSW Bar Council – the regulatory arm of the association, said.

“I have an understanding of the shame and trauma that comes with it.

“We have to change the way we have been doing things to ensure women who have experienced sexual violence can get to the first step.

“That is to be heard and understood. That they will get a fair go in the criminal justice system.”

Signing the statement was in no way “critical of the bar association”, she said, but to show a “different perspective in terms of the whole membership of the bar”.