NSW Police say 'mistaken belief' is an accused’s lack of care

NSW Police say ‘mistaken belief’ is an accused’s lack of care for the person they want to have sex with

In May this year, prompted by a 4 Corners episode in which Saxon Mullins described the events that led to the high-profile conviction and then acquittal of Luke Lazarus, the New South Wales Attorney-General Mark Speakman announced that he would refer the state’s consent laws to the Law Reform Commission.

“[Saxon Mullins has] been humiliated in an alleyway at the age of 18, she’s had to tell her traumatic story in court, she’s had to face two trials, two appeals, and still, no final outcome,” Speakman said. “From her viewpoint, the whole process has been, I imagine, just a huge disappointment. What this shows is that there’s a real question about whether our law in New South Wales is clear enough, is certain enough, is fair enough. That’s why I’ve asked the Law Reform Commission to look at the whole question of consent in sexual assault trials.”

Lazarus was initially convicted of raping Mullins in 2015 by a jury but had the verdict quashed on appeal. In 2017 the District Court determined that Lazarus had a genuine and honest belief that Mullins was consenting even though “in her own mind” she was not. Judge Robyn Tupman found that Mullins had not asked Lazarus to stop and “did not take any physical action to move away”.

The case effectively turned on whether Lazarus knew Mullins had not consented.

As of 2007 in NSW if a person has “no reasonable grounds” for believing there is consent they are deemed to have knowledge of lack of consent. That reform was significant at the time and was intended to apply to an accused with a “genuine but distorted” view about appropriate sexual behaviour.

At the announcement of the review into these laws in May the minister for the prevention of violence and sexual assault Pru Goward said it was “not enough to assume that you have been given consent”.

“If it’s not an enthusiastic yes, then it’s a no,” Goward said. “I feel that this is where the law in NSW needs to go. That is certainly the case in Tasmania and I’m hopeful that the Law Reform Commission will come to a similar conclusion.”

In its submission to Law Reform Commission the NSW Police Association said change is necessary noting that the criminal justice system, including the operation of the consent laws in NSW, fails too many victims of sexual assault.

“People in NSW and the community as a whole now recognise that in order to engage in sexual activity, a person should actively seek the consent of their prospective sexual partner, and only act in accordance with the consent which is wilfully and enthusiastically given,” the submission reads. “Opponents of such conceptions of consent being adopted into the definitions of sexual assault cite traditional criminal justice principles which require a guilty mind, arguing the defence of mistaken belief is necessary, and that progressive reforms of sexual assault provisions that meet the needs of victims are not consistent with this requirement.”

But the Police Association argues this is not an unwarranted standard of behaviour; if a person has not clearly and enthusiastically consented to sexual activity, don’t do it.

“No longer does the community accept that possible ambiguity or awkwardness about obtaining consent is sufficient justification for ignoring the tens of thousands of people in NSW who suffer unwanted sexual conduct every year.”

In regards to “a mistaken belief” the police association says this is often brought about by the accused’s lack of care for the person they want to have sex with, and a failure to establish what the victim consents to. “That course of events should no longer be a justification for having sex with someone without their consent.”

But the NSW Bar Association argues otherwise. In its submission to the LRC the Bar Association says sexual consent laws should be amended in NSW so that a person who has an unreasonable but honest belief in consent is not guilty of a crime.

The Bar Association told Fairfax Media it did not support changing the law to reflect provisions in Tasmania and Victoria, which provide a person does not consent to sex if they do not “say or do anything to communicate consent”.

The reason the Attorney-General instigated the review of these laws was because Saxon Mullins’ case exemplified the legal challenges that victims of sexual assault face. The Police Association of NSW make clear Mullins’ situation was not an aberration.

“Too often, victims who, in the view of our members have clearly not consented to the sexual conduct that occurred, are not believed by the criminal justice system. It is incredibly difficult to prove to the criminal standard that the victim did not consent, and that the accused knew they did not consent according to the definitions in s61HA.”

Any criminal justice framework must fairly accommodate both victims and perpetrators: that is critical. In the realm of sexual assault it is clear, according to the men and women on the front line, that too many victims in NSW cannot readily access justice and the corollary to that is perpetrators escape it.

Against that backdrop providing alleged perpetrators with another safe haven in the form of ‘mistaken belief’ in consent, is hard to fathom.

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