Tread carefully on sexual consent - some of these ‘reforms’ are dangerous
By Stephen Odgers
The NSW government has stated it will change the law relating to consent to sexual activity, making it easier to obtain convictions for sexual offences. Those changes will be based on recommendations made in a report last year by the NSW Law Reform Commission, all of which the government says it “supports, or supports in principle”.
Under current law, consent means “free and voluntary agreement”. It may be withdrawn at any time and consent for one sexual activity is not consent for another. However, convictions are often difficult because trials are usually “word against word” – one party’s version of events against another’s – and guilt for any crime must be proved beyond reasonable doubt.
NSW Police Commissioner Mick Fuller with sexual assault campaigner Saxon Mullins and NSW Attorney-General Mark Speakman, announcing the proposed changes to sexual consent laws.
As a barrister who has practised in the area of criminal law for three decades, I support some of the Law Reform Commission’s proposed changes, but I see great danger in others. I certainly support cultural change in this area, but not by criminalising behaviour that does not involve serious misconduct or deserve the imprisonment that flows from conviction.
One proposed change that is troubling is that “free and voluntary agreement to a sexual activity must exist at the time of the sexual activity”. The commission has acknowledged this means a person cannot give advance consent. So even if a person told their sexual partner that he or she wanted to be woken from sleep by some form of sexual touching, this could not be regarded as consent to that sexual activity. Does the NSW government really support that principle?
Another concerning proposal is that a person “does not” consent to a sexual activity if there are behaviours including, for example, “verbal aggression, begging and nagging, physical persistence, social pressuring, and emotional manipulation”. How many people would be at risk of prosecution after a bitter break-up on the basis that they had “begged” or “nagged” for sex? Whatever moral judgment might be made about such behaviour, does the government really support a change to the criminal law that would require it to be held that there was necessarily no consent in such circumstances?
The commission also proposes that a person “does not” consent to a sexual activity if “participation is dishonestly procured by a false representation or upon a false pretence, known by the maker to be false when it was made”. Assume that a person says to another, falsely, “I am not married” or “I will leave my current partner” and that induces the other person to participate in sexual activity.
Such dishonesty may be morally wrong. However, it is not usually a crime to tell fibs or even blatant lies. Does the government really support the principle that any lie told to procure sexual activity will constitute a serious criminal offence?
Yet another of the proposals is that “a person does not consent to a sexual activity if the person does not say or do anything to communicate consent”. This would mean, even if a jury is satisfied there was free and voluntary agreement to sexual activity in the mind of the complainant, it would be required to find there was no consent because it was not actually “communicated”. Does the government really support that principle? Should an accused be convicted even if the complainant admits that he or she consented?
It is also proposed that an accused person should be deemed to “know” that consent is absent if a belief in consent would not be “reasonable”. The necessary “fault element” for this serious crime would be satisfied by a test of negligence. Even accepting that it is appropriate to impose criminal liability on the basis of negligence, it is plainly desirable that this be done by a separate offence with a lower maximum penalty. The current maximum penalties for sexual assault offences range from 14 years to life imprisonment.
The government has gone one step further than what the Law Reform Commission proposes by stating that any belief in consent “will not be reasonable if the accused did not say or do anything to ascertain consent”. This will effectively require everyone engaging in sexual activity to ask – by words or some comparable form of communication – for consent for each and every sexual act. How reasonable is that expectation? Will a raised eyebrow be enough? A quizzical look? Even assuming that it is generally desirable that such steps be taken, should failure to comply with that requirement necessarily result in conviction for a very serious criminal offence?
Even if the complainant has given every appearance of consent, or has plainly consented to one form of sexual activity, a jury will be required to convict because the accused did not actually ask for consent for another form of sexual activity.
Does the government really appreciate the significance of this change to the law? A jury will be required to convict an accused person of a very serious crime even if the jury accepts that the accused honestly believed there was consent and accepts that – apart from the omission to “say or do anything to ascertain consent” – it was reasonable for the accused to have that belief.
The criminal law is a blunt and brutal tool of social education. A legitimate desire to bring about desirable cultural and societal change must not be at the expense of criminalising behaviour that does not involve serious misconduct or deserve severe punishment.
Rob was bashed, Aaron was raped and Martin ended up living in the roof at his work to escape his wife: Australian men terrorised by female partners share their harrowing stories
Martin never thought he'd end up living in the roof space of his workplace at 48 years of age.
The father from Port Macquarie on the NSW mid-north coast moved out of the house he shared with his partner after she tried to choke him.
He claims an AVO taken out on him by his now ex-partner was based on her false allegation of assault. Martin said he was trying to remove her from the house after she attacked him while their young son slept.
'I'd just been assaulted by her jumping on my back and trying to choke me, so I called the police,' Martin told Daily Mail Australia. 'But she said I pushed her first and the police walked in front of me and said, "if she’s got a mark on her, you’re going to jail".'
Martin is now locked in an ongoing custody battle for his son and despairs at not being able to live with him. 'I was the one who got up to him at night, took him for walks, totally did the dad thing,' Martin said.
'Someone needs to hear our voice. I don’t condone what some of these blokes are doing (in domestic violence incidents) in any way, shape or form, but being on the other side, the way I’ve been treated, I see how they get to that state of mind.
'There's nothing else left.'
Rob left his partner while she was pregnant with their second child because she was repeatedly hitting him to the point where friends' couches were preferable to the family home.
'She was physically violent, she was emotionally violent,' the Brisbane man said.
'She made three significant attempts to finish me off, with knives and with a car.
'It was alcohol that unlocked the physical violence in her… she just used to hit me a lot. She used to punch and kick me in the nuts, it would carry on for hours.
'Her favourite party trick was when I'd go to sleep in the spare room, which was unlocked. She was an insomniac so she'd come in every 20 minutes and pull me out of the bed by my feet, and this would continue until 2am or 3am. Then she'd fall asleep and now, you're not sleeping.'
The focus on domestic violence in Australia is rightfully on women, with one murdered by a current or former male partner every week in Australia.
The Facebook page Counting Dead Women Australia reports that 13 women have died due to family and domestic violence in 2021. It was 56 in 2020.
Victims such as Hannah Clarke, Karina Lock and Fabiana Palhares are now recognisable names across Australia after their horrific deaths at the hands of their partners.
But women's violence towards male partners is not given prominence despite being a part of Australia's domestic violence problem.
One man a month died at the hands of a current or former partner from 2012-2014, and two men were hospitalised each day after being assaulted by their spouse or partner in 2014-15 (compared with eight women a day in the same period).
Daily Mail Australia spoke to men who described serious acts of violence and coercive control by female partners.
What emerges from their accounts is a shared sense of shame and humiliation when reporting the abuse, a common reaction of disbelief from police, lawyers and courts to their claims, and an almost total absence of support services.
These men allege physical injury, sexual violation, emotional torment, coercive control and falsehoods designed to make them look like the perpetrator.
Faith Tkalac started a #justice4jari campaign after her son Jari Wise was hit and killed by a car driven by his former partner Melissa Oates at Huonville, south of Hobart, in February 2020. Oates was arrested at the scene and charged with four breaches of a police family violence order.
In April 2021 she was convicted of dangerous driving and imprisoned for eight months.
Oates had been three times over the legal limit and wasn’t wearing her glasses, a condition of her licence. She left the scene and returned to a house where she and Wise had attended a party, where she pointed out the damage to her van to friends. She had returned to the scene of the fatality by the time police arrived.
Ms Tkalac has since become a fervent advocate for recognising that men can also be victims of domestic violence but once they complain, are diverted into 'perpetrator' treatment programs.
'Where does all the funding go?’ Faith said.
'If a man rings up for some help… just say my Jari had made a phone call, he probably would have been asked, "What caused you to carry on like this? What has caused your behaviour?"
'Then they'd refer you to a service that can help "correct" your behaviour.
'There are no services for men, there isn't anything.'
West Australian man Aaron said the final straw in his relationship was when his wife inserted an object into him while he was asleep.
'She raped me and I left the relationship a day later,' Aaron told Daily Mail Australia.
'Throughout our entire relationship she was sexually abusive.
'She tried to get me to have sex with her friends in front of her. For my 40th birthday she hired a prostitute, took me to a brothel and wanted me to have sex with the woman in front of her.
'She had a tracking app put on my phone, she had all the passwords for my social media, including my business social media, my computers for work…'
Aaron claims he has been prevented from seeing any of his children because of a restraining order taken out against him.
'There's now been eight attempts at trial and more than $400,000 spent to keep me away from my children,' he said.
'The only ones I can now fight for are my two youngest. They won’t even entertain me seeing any of my other kids.'
Craig Bennett recently described his experience as a victim of domestic violence in a submission to the NSW Joint Select Committee on Coercive Control.
Bennett described a 'journey of physical, verbal, spiritual, financial and emotional abuse' after he collapsed at work with viral encephalitis and was hospitalised for two months.
He told the committee he was constantly taunted by his wife because he was unable to work due to the illness.
'A real man wouldn't be begging his wife for money but would be out working instead of being a lazy x-y-z,' he reported her saying.
'I was denied a shower chair because "real men do not sit in the shower",' Bennett continued.
'I would have to sit on the shower floor and crawl out and hoist myself up on the toilet to stand up. The number of times she would verbally mock me for not being a "real man" as I was sitting there and say, "Why don't you do everyone a favour and kill yourself?"
'She would refer to me as "big bad daddy" to the kids because I was "too lazy to work". She would sharpen knives in the kitchen saying one day she would stab me if I did not go back to work.'
In other tragic cases, Brisbane fashion designer Katie Anne Castel, 38, killed her husband Jarred Castel, 35, when she threw a 20cm kitchen knife at him which hit him in the chest in 2017.
Mr Castel had arrived home later than expected, sparking an argument. Ms Castel was slashing her own arms and said she’d kill herself before she threw the knife at her husband. He died from blood loss as a result of the wound.
Ms Castel was sentenced to nine years jail for her 'deliberate and very dangerous' act in 2019 but was given early parole eligibility in 2020 after appealing the length of her sentence.
'Domestic violence is growing, unfortunately, in our country,' Jarred's father Tony said after Ms Castel's sentencing.
'The statistics… the impression is that it is men beating up women, it goes the other way as well and it doesn't matter the gender, we've got to protect our people.'
His siblings testified in court that their brother’s wife had been 'psychologically abusing' him by alienating him from friends and family. This is a common refrain among male victims of female domestic abuse.
Sydney man Jeff Lindsell died from burns suffered when he was caught in a fire while he slept at Gymea in 2017. His former partner Amanda Zukowski was charged with his murder after being accused of lighting the fire.
Zukowski was found dead in non-suspicious circumstances in January 2020, three weeks before the trial was to begin.
Mr Lindsell's mother Kathy later told the local paper: 'We had no idea Jeff was in a DV relationship because he kept it secret. We should have realised when his personality changed and he withdrew from his family and friends.'
His sister Corinne added, 'It upsets me that domestic violence by women against men is viewed as less significant. I don't understand why a man's life is less important.'
For the first time, a Senate Inquiry into Family, Domestic and Sexual Violence has recommended any national plan should reflect the diversity of victim-survivors, including men.
New Zealand to side with Australia in Beijing barley tariff dispute
Queenstown: New Zealand has thrown its support behind Australia’s ongoing trade dispute with Beijing in a significant political signal that the trans-Tasman allies remain unified in dealing with China’s economic coercion and growing influence in the region.
The decision of the New Zealand government to be a partner in the World Trade Organisation dispute on significant tariffs on barley imports coincided with Prime Minister Scott Morrison’s visit to Queenstown for critical bilateral meetings with his counterpart, Jacinda Ardern, on Monday. The talks will be dominated by China and its increased assertiveness in the Indo-Pacific.
The two leaders touched noses and foreheads in a Maori “hongi” — a traditional indigenous welcome which is a symbol of unity and “sharing the breath of life” for the first time since February last year prior to both nations slamming closed their borders.
Mr Morrison rejected assertions the alliance was splintering over differences on how to approach China after relations became strained in recent months after Australian officials said they were blindsided by Wellington’s reluctance to put pressure on Beijing on trade and human rights issues. He said on Sunday night both nations were committed to a “free and open Indo-Pacific”.
“We are Five-Eyes partners, I mean we are part of ANZUS. We are and have been alongside each other in favouring a world that favours freedom for a very long time,” Mr Morrison said.
He said the countries shared values and common interests and wanted a region where sovereign states could pursue their interests free from coercion. Mr Morrison also flagged extending the travel bubble to other Pacific nations including Fiji, Vanuatu, Solomon Islands and Tonga.
Leaders gather for the annual Australia-New Zealand leaders’ meeting in Queenstown, New Zealand.
Leaders gather for the annual Australia-New Zealand leaders’ meeting in Queenstown, New Zealand. CREDIT:GETTY IMAGES
Hours before Mr Morrison arrived, the New Zealand government announced while it had not been asked to join the WTO action, it would participate because the dispute would be critical to the effective functioning of multilateral rules-based trading system.
Ms Ardern said on Sunday evening that as two sovereign nations New Zealand and Australia will not always see every issue in the same way and “often will see and do things differently.”
“(But) an increasingly complex geo-strategic environment family is incredibly important, and Australia, you are a family,” Ms Arden told a room full of trans-Tasman business leaders.
“And so I cannot imagine a more important time for us to just continue to build and strengthen those ties.”
Diplomatic relations between Canberra and Beijing are at their lowest in decades, with China imposing more than $20 billion of tariffs in response to a number of Australia’s moves including calling for a global inquiry into the origins of COVID-19 and banning Chinese telecom giant Huawei from its 5G rollout.
Beijing has imposed a range of tariffs and trade strikes on Australian products including 80 per cent duties on barley because it said Australia was dumping the product there below cost, hurting domestic producers. In December, Australia took the row to the WTO which on Friday agreed to establish a dispute settlement panel.
New Zealand Trade Minister Damien O’Connor said it was important to New Zealand and its exporters that trade rules were fairly applied and the country had joined over 60 such disputes over the years.
“New Zealand was not asked to join as a third party, however we have been a third party in over 60 WTO cases since 1995 and it’s not unusual for us to join actions disputes when we see challenges to international trade rules,” he said.
China has become a problematic topic in the trans-Tasman alliance over the question of how to handle the growing assertiveness of Beijing, with several recent public statements from New Zealand ministers frustrating the Morrison government.
In December, New Zealand’s foreign affairs minister Nanaia Mahuta offered to mediate a truce between Australia and China and said both parties needed to “concede in some areas where they are currently not seeing eye to eye”. Months later, Mr O’Connor suggested Australia should speak with more “respect” and “diplomacy” towards China.
Ms Mahuta’s rhetoric has shifted in recent weeks and is now warning Kiwi exporters should look to diversify their trade.
“We cannot ignore, obviously, what’s happening in Australia with their relationship with China. And if they are close to an eye of the storm or in the eye of the storm, we’ve got to legitimately ask ourselves – it may only be a matter of time before the storm gets closer to us,” she told The Guardian last week.
New Zealand’s move to support Australia follows comments by the European Union’s top diplomat in Canberra which urged China to have a “proper discussion” with Australia over its multibillion-dollar trade disputes.
Australian Trade Minister Dan Tehan flagged a second WTO dispute with China – this time over punitive wine import tariffs introduced last year.
“That is something we’ve got under active consideration,” Mr Tehan told ABC TV’s Insiders on Sunday.
“We’ve had detailed discussions with the wine industry on this, and from the outset, we’ve always said that we would take a very principled approach when dealing with these trade disputes, and if we think our industry has been harmed or injured, we will take all necessary steps and measures to try to address that.”
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