NSW consent laws: Attorney-General resists calls for rape shield law reform

NSW Attorney-General Mark Speakman has resisted calls from the legal fraternity to overhaul laws that protect alleged rape victims from bring grilled about their sexual past in court.

There is “no appetite” to overhaul a law that prevents rape survivors from being grilled in the witness box about their sexual history.

But Attorney-General Mark Speakman is considering a “very narrow carve-out” of the legislation to address concerns from lawyers and judges that evidence about prior false complaints was banned from being used in court.

“I don’t have any appetite for a wide reform,” Mr Speakman said.

“But if there’s some very, very narrow carve-out that’s appropriate, that is something we’ll have to make a decision on, because we’ve gone out to consult on a number of options.

“The thrust has to be to keep the vast majority of this evidence away so victim-survivors will come forward.”

Known as rape shield laws, section 293 of the Criminal Procedure Act prevents an alleged victim from being cross-examined about their sexual history.

Attorney-General Mark Speakman revealed sweeping reforms to the state’s consent laws. Picture: Tim Hunter

The law signalled a departure from the bad old days when defence barristers could interrogate and humiliate victims about their sex lives.

This week, survivors, police and advocates celebrated the Attorney-General’s affirmative consent law reform as a win for victims.

That means a person can’t have a reasonable belief an alleged victim was consenting unless they said or did something to get that consent.

The reforms also followed a campaign by The Saturday and Sunday Telegraphs, in partnership with Rape and Sexual Assault Research and Advocacy, calling for affirmative consent to be made law in NSW.

In the background, Mr Speakman has been fielding calls for change from the legal fraternity on the related issue of rape shield laws.

In 2019, a man charged with raping a woman was not allowed to admit evidence about the victim allegedly making prior false complaints about being sexually assaulted.

In one of those incidents, the victim was convicted of perjury for lying to police.

Survivor advocate Saxon Mullins’s case sparked the review of NSW’s consent laws. Picture: NCA NewsWire/Gaye Gerard

The judge in that case said the law was unfair to the accused and called on parliament to look at reform.

The NSW Law Society joined the chorus in 2019 and wrote to Mr Speakman asking for a review of Section 293.

Over the past 18 months, the state government has consulted with dozens of stakeholders, from the NSW Bar Association to Rape and Domestic Violence Services Australia, on options to amend the law without trampling over safeguards for victims.

“If they’re told there’s a risk that they’re going to be cross-examined on their sexual history, that will deter victim-survivors coming forward,” Mr Speakman said.

“And we know from all the stats that we’ve quoted this week, the biggest problem here is not false complaints, which are typically few and far between. It’s under-reporting.”

Mr Speakman said just because a victim didn’t go ahead with a statement to police, or charges were withdrawn, didn’t mean it was made up.

“What you’ve got to remember with false complaints is the fact that (just because) a complaint hasn’t been followed through, doesn’t make it false,” he said.

“And there’s a vast number of complaints where someone will go to a police station, but not follow through for a whole variety of legitimate reasons.

“You also want to make sure that if someone has made a previous complaint and the police have decided not to prosecute it or there’s been an acquittal, that isn’t put into evidence as well.

“The fact that someone is acquitted or not further investigated, it doesn’t mean it didn’t happen.”

Asked when a decision on s293 was expected, Mr Speakman replied: “In the fullness of time.”

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