A bid to fix a legal flaw is fraught with a new set of problems

This is a big deal. The need to get explicit consent to sex, whether by action or words, could transform the legal system’s ability to deal better with sexual assault. That’s the very fine aim of new laws proposed this week in NSW.

The new affirmative consent laws are also fraught with a new set of problems, casting the net so wide that we are forced to ask: is it better that a guilty man goes free or that an innocent man ends up in jail? Neither scenario is just. But the latter is surely worse.

What is clear, before we enter the grey zone of consent, is that the current system is not working. In 2018-2019, according to the NSW Law Reform Commission, almost 15,000 complaints were made to NSW police about sexual assault, sexual touching. Less than 10 per cent led to charges being laid, 21 per cent of those were withdrawn in court, a rate five times higher than of any other offence. Of those that went to court, 34 per cent resulted in a guilty verdict.

The law has a hard time dealing with consent. On Thursday, the NSW Department of Public Prosecutions dropped sexual assault charges against NRL star Jack de Belin. When a 19-year-old woman is sobbing, goes numb inside, while two burly footballers have sex with her, anally, orally and vaginally, is she consenting? In two court trials, the jury couldn’t reach a verdict.

Two days earlier, NSW Attorney-General Mark Speakman announced reforms to consent laws to clarify two issues: first, an accused person’s belief about consent will not be reasonable unless they said or did something to get consent; and secondly, a person doesn’t consent to sex unless they said or did something to communicate that consent.

Saxon Mullins was 18 when she caught a train down from the NSW central coast to Sydney for a night out with a friend. She claimed she was anally raped by Luke Lazarus, the son of a nightclub owner in a Kings Cross alley way. Though a jury found Lazarus guilty, two later appeals found him to have a reasonable belief that she consented to anal sex, though she said nothing. When Mullins froze, so did the law.

These new reforms, which aim to bring the law up to speed with the fact that the human brain and body reacts to danger in different ways, are partly the result of Mullins’s traumatic experience, and her brave, measured and thoughtful advocacy.

Lawyers say that hard cases make bad law. And maybe these reforms go too far, but the Mullins case should not have been that case. Some nuance shouldn’t be that hard to legislate.

The normative value alone of these reforms is important. Everyone should understand that silence may not mean consent. When criminal law makes that clear, the message will filter through to more people.

But here are two spectrums, both troublesome. In the past few days, some older people have said they didn’t need these sorts of laws when they were teenagers. That’s nostalgic nonsense. Maybe they didn’t, but others did because sexual assault is not a new crime, and consent has always been murky.

At the other end, supporters of the reforms have said: what’s wrong with asking whether a woman wants to have sex? Nothing is wrong with that. In an ideal world, there could be an invitation and acceptance to sex. And a filing cabinet to keep records of it all.

But where do we find this weirdly organised world? Sex can be a complex enough business for adults. Even more so for teenagers, hanging out in groups, coming of age amid growing social pressures, online porn readily available, wanting to be adult and popular, drinking, taking drugs. Both girls and boys need to better understand what consenting to sex looks like.

The focus on young boys is understandable. But so much of the commentary is horribly sweeping, wildly out of control, never mentioning, even in passing, the millions of young boys who don’t take advantage of girls. We should be asking why some boys, but not others, understand consent. Shaming all boys won’t work, that much is clear, too.

Had these laws existed in 2013, maybe the result would have been different for Mullins. But not necessarily. There will still be contested stories, claims and counterclaims, disputes around he said vs she said. The presumption of innocence remains in place, and the burden of proof is still beyond reasonable doubt. That is as it should be when a defendant faces a criminal conviction and jail.

Perhaps the more important practical changes are those to jury directions introduced as part of these law reforms. Judges may make any or all of five new directions to juries: no assumptions should be made from the way a person dresses, or the fact they might be drunk or affected by drugs, that sexual assault is not always accompanied with threats of violence, it can occur in relationships, and there is no typical response to sexual assault.

These make sense. But they don’t overcome the dangers of the new affirmative consent laws. Replacing one range of grey that let men off with a different range of grey that ensnares the innocent is not progress. Only the crazy fringe of feminism would think so.

Consider a few examples. A couple have been together for 10 years. Over that time, the man has often woken in an amorous mood. He reaches over, fondles his still sleepy partner’s breasts, and elsewhere, and they have sex. Not a word is said.

When a man repeats this the morning after the new laws come into effect, his actions could amount to a criminal offence. Consent has not been given, either by word or action. The danger arises when relationships break down, when people make wicked claims. The new law will assist spurious allegations of sexual assault.

Understandably, this has the NSW Bar Association concerned. In a press release on Tuesday, president Michael McHugh SC also pointed out that “every single sexual touching and act in the course of a physical liaison will need positive consent in order to avoid criminalisation”.

Can we trust people, police, prosecutors, the courts and juries to apply the new laws with common sense? Maybe. Context should matter too. If a couple has had vanilla sex for a decade, and the bloke then brings a whip into the bedroom, probably safer to ask her if she wants it.

Another example. Two teenagers are messing about, kissing. Neither are very articulate, one thing leads to another, and the boy fondles the girl’s breasts. They have sex. Here again, the boy is at risk of being charged with a serious crime. It’s a great idea to ask, but in the often clumsy, awkward teenage world, can we really expect a boy and girl to check in on consent at every stage of sexual activity?

Bianca Fileborn, a lecturer in criminal law at Melbourne University told The Guardian a few months back that “it’s not always appropriate to instigate a criminal justice response, given their age and inexperience, but we really lack alternative responses to hold young men to account without being overly punitive”.

And that’s the problem with the proposed affirmative consent laws. They will catch, and treat as a serious crime, a range of different acts, with varying intentions, or mens rea – which is Latin for guilty mind – as the law calls it. Clumsy teenage sex where consent was not clearly verbalised or indicated is being lumped together with serious, intentional rape.

Let’s not be so naive to think that new consent laws have ushered in clear blue skies. Young or old, sex is not a series of mechanical transactions, of making an offer and seeking acceptance to kissing, touching, sex. It’s good that there will be a review in five years. But the risk is that once embedded, even a flawed law with a fine intention behind it will be too hard to change.