What Australia’s new Affirmative Consent laws mean

Consent laws are finally starting to change in Australia. Here’s what the new affirmative consent laws some states have adopted mean in reality.

Consent laws are finally starting to change in Australia.

TW: This article discusses sexual assault.

Earlier this week, major reforms to New South Wales sexual consent laws were passed in Australia, and proposed in Victoria. So what do these new “affirmative consent” laws mean in reality?

Why were changes necessary?

In the real world, consent is one of those things that should be straightforward — if it’s not a yes, it’s a no. It should be this simple, and yet, as too many people (yes, especially women) can tell you, it’s too often not the case.

When you look at consent in terms of the law, it can often get even murkier and leave victims with little to no protections.

So long as sexual assault laws remain inconsistent across Australia, they have the appearance of being arbitrary and unimportant.

We need Affirmative Sexual Consent legislation in every state and territory.

Perpetrators find refuge in our division.

— Grace Tame (@TamePunk) November 20, 2021

The case that sparked these reforms, was that of R v Lazarus in which Luke Lazarus was accused of raping Saxon Mullins in an alleyway behind his dad’s nightclub in Sydney. Lazarus verbalised what he wanted, and Mullins froze. She complied with his requests, which he saw as consent, but consent was never verbalised. While Lazarus was sentenced to prison time, he was later acquitted with the Court finding that he had a “genuine and honest belief” she was consenting because he had believed she was actively participating.

Mullins later became one of the strongest advocates for these law reforms.

Saxon Mullins after addressing press about the changed laws.

Affirmative consent laws have passed in NSW. Every survivor and expert who helped this through changed the world today. Thank you. https://t.co/vDVBZTbMCQ

— Saxon Mullins (@SaxonAdair) November 23, 2021

What do the new laws mean in NSW?

In NSW, under the new Affirmative Consent Bill, consent to any sexual activity must be given verbally or with actions, it can’t just be assumed. Therefore, in the future, an accused person can’t rely on their own belief that the victim consented.

It also means that consent to one sexual act doesn’t mean assumed consent to any other sexual act, that consent can withdrawn at any time.

Importantly, it also means that being drunk (when self-induced) isn’t a legal reason to misunderstand if consent has been given. Previously, it could only count as committing sexual assault if the accused knew their victim wasn’t consenting.

As with previous laws in this state, that consent must be given freely and voluntarily (ie. if someone forces a person to say yes, that is not consent).

Affirmative consent is law in NSW pic.twitter.com/UrpL2s2vkY

— Saxon Mullins (@SaxonAdair) May 25, 2021

As Greens spokesman for Women, Jenny Leong MP said in a statement about the reforms:

“This Bill recognises that: every person has a right to choose whether to participate in a sexual activity, consent to a sexual activity must not be presumed, consensual sexual activity involves ongoing and mutual communication, decision-making and free and voluntary agreement between the persons participating in the sexual activity.”

“The Bill puts victim-survivors at the heart of the law, and removes rape myths and assumptions from the Crimes Act. It removes the patriarchal assumption that anyone is entitled to sex without the active, enthusiastic consent of the other person,” she continued.

March 4 Women protests around the country.

What about the proposed laws in VIC?

While similar laws have now been proposed in Victoria and new legislation will be introduced in 2022, the state does already require communicated consent between the parties involved. The proposed changes will instead focus on making the accused answer questions, rather than putting the onus on the victim.

As part of this initial response, there’ll also be a 10-year strategy and an 18-month examination by the Victorian Law Reform Commission.

This is huge. I’m overwhelmed with emotion. What an incredible step forward by the Victorian Government. 😭 https://t.co/Towh2np6tW

— Brittany Higgins (@BrittHiggins_) November 12, 2021

Where do the other states and territories stand?

Prior to these law reforms, Tasmania was the best with their consent laws, putting the onus on both parties to ensure there was consent before sexual interaction.

Queensland also took a stab at strengthening their consent laws in March, with changes that meant silence wasn’t consent, and being drunk isn’t a reason to misunderstand being given consent. However, the attempt to add an affirmative consent model to the bill was voted down. Many believe the laws that did pass aren’t strong enough.