Would the new consent laws have led to a different outcome in the de Belin case?

It’s a decision that will be interpreted wildly differently by the parties involved.

Jack de Belin’s sexual assault charges have been dropped, with his lawyers informed on Thursday the rugby league player will not face a third trial.

Two previous trials have resulted in hung juries for de Belin and his alleged accomplice, footballer Callan Sinclair. They pleaded not guilty to all charges and were found not guilty of one charge in the most recent trial.

For de Belin, it is a vindication.

Jack de Belin outside court in April.Credit: Kate Geraghty

For the NRL leadership, it is a reason to reinstate the St George Illawarra player, who has been suspended from playing for the 2½ years he has been battling the charges. NRL chief executive Andrew Abdo, a member of the Champions of Change for Sport Group, said on Thursday that “Jack will be free to play in the competition” and that the NRL’s policy had “operated as intended in terms of protecting the game’s interests”.

But for the complainant and advocates for rape victims, it will be yet more devastating proof of how difficult it is to bring a sexual assault allegation to a court conviction.

And for state prosecutors and criminal lawyers, it may offer pause to reflect on how differently such a case might go down once affirmative consent laws are enacted in NSW.

The complainant met the two men in a North Wollongong nightclub and left with them. She told the court she thought they were going to another club but instead they took her to a North Wollongong unit.

She says she did not consent to the sex that took place there, with both men.

“I laid there dead because I was so numb inside,” the woman told the court. “I was crying the whole time.”

The next day the alleged victim turned up at work “distracted” and looking puffy, as though she had been crying, her then-manager told the court in the second trial.

The manager testified that she said: “They wouldn’t let me leave last night, I didn’t want to go back, they tried to take my shirt,” and “I think I was raped”.

But de Belin and Sinclair testified the woman enthusiastically participated in the sex.

Under NSW’s proposed affirmative consent laws, announced on Tuesday, a person will be deemed not to have consented to sexual activity unless they said or did something to communicate consent.

Importantly, an accused person’s belief in consent will not be reasonable unless they did or said something to ascertain consent.

Under existing law, if an accused rapist has “reasonable grounds” to believe there was consent, it can override whatever the alleged victim says about their own consciousness of their consent, even if the accused did nothing to find out if the person was consenting.

The proposed new laws require active steps to be taken.

The laws will also affirm a person’s right to withdraw consent at any time and clarify that if a person consents to one sex act it doesn’t mean they have consented to others too.

Would these laws have changed the outcome of the de Belin case? Perhaps not but they might have seen it framed in a different way.

If the law is a guide to behaviour, then football players on group-sex benders might have to become more proactive in ensuring they have the enthusiastic consent of the women they take home.

Their clubs will no doubt include the new laws (once they’re enacted) in the tutorials they give their players on how to respect women, tutorials that have had decidedly mixed results so far.

The other aspect of the de Belin verdict is the increasingly thorny problem employers and institutions face when dealing with sexual misconduct allegations against employees and members.

Do they stand them down after an allegation is made? A formal report? Or only after charges are laid?

The NRL uses the latter as a yardstick but in other settings it seems ludicrous, particularly given how hard we know it is for victims to make a police complaint, let alone get their allegation to trial.

Brittany Higgins’ alleged rapist lost his job (although we are told it was for a “security breach”).

Former attorney-general Christian Porter, accused of a historical rape when he was a student, which he strongly denies, eventually lost his portfolio. But not because the allegation against him was believed by the Prime Minister, only because the matter morphed into a conflict of interest and a political distraction.

This week we learnt that 19 claims of sexual assault and other misconduct by federal MPs and staff have been referred to police since February. No one has been stood down as a result of them.

The presumption of innocence is a founding principle of democracy but increasingly it is in tension with victims’ rights and our evolving perceptions of consent.

As to why these cases keep cropping up in the forums of football and politics?

Call it a coincidence, I guess.

Opinion newsletter

Opinion takes on the week’s most debated topics with views that will challenge, champion and inform your own. Sign up to receive it every Thursday.