Law flags many shades of grey in the gauge of consent


NSW Department of Public Prosecutions dropped sexual assault charges against footballer Jack de Belin this week

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 Less than 10 per cent led to charges being laid, 21 per cent of those were withdrawn in court, a rate five times higher than of any other offence.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.

The risk is that once embedded, even a flawed law with a fine intention … will be too hard to change

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Prof. Zimmermann demands apology from MP Perrett

Open Letter of Complaint to the Chair of the Joint Select Committee on Australia’s Family Law System

Open Letter of Complaint to the Chair of the Joint Select Committee on Australia’s Family Law System – Western Australian Legal Theory Association (


Dear Chair,

I am writing to manifest my protest against the appalling behaviour of a member of your Joint Committee during yesterday’s public hearing.

Mr Graham Perrett MP has treated me disrespectfully and discourteously. I demand an apology.

Almost every single question made by him demonstrated animosity and a lack of interest in addressing the terms of reference leading to the present inquiry.

I was not expecting to receive this sort of abusive treatment.  Rather than being focused on the subject of the inquiry, Mr Perrett aggressively challenged my academic credentials and the credibility of my institution of higher education.

Indeed, he was more focused on attacking Sheridan than being focused on discussing the subject of the inquiry.

Since Mr Perrett, a school teacher and the author of several erotic fantasy novels, even dared to question my academic credentials, below is a short account of my academic and administrative accomplishments.

Also attached, for your appreciation, is documentary evidence confirming the information provided.

Professor Augusto Zimmermann LLB LLM (cum laude) PhD (Monash) DipEd CIArb is currently Professor of Law at Sheridan Institute of Higher Education in Perth, Western Australia, and also Professor of Law (adjunct) at the University of Notre Dame Australia, Sydney campus.

He is the Founder and President of the Western Australian Legal Theory Association, the Founder and Editor-in-Chief of The Western Australian Jurist law journal, an Elected Fellow at the International Academy for the Study of the Jurisprudence of the Family, and a former Vice-President of the Australasian Society of Legal Philosophy.

Professor Zimmermann was awarded the 2012 Vice Chancellor’s Award for Excellence in Research, as well as two Law School Dean’s Research Awards, in 2010 and 2011.

Professor Zimmermann has received several nominations to the Vice-Chancellor’s Teaching and Learning Award at Murdoch University. He received the 2013 Law Lecturer of the Year Award from the Murdoch Student Law Society (MSLS).

During his time as Associate Dean for Research (2009-2012) at Murdoch University’s School of Law, Dr Zimmermann was responsible for increasing the School’s research output. The School’s ERA ranking increased from C to B.

Professor Zimmermann is an experienced postgraduate supervisor of several LLM., MPhil, and PhD students. He was the Law School’s Director of Postgraduate Research at Murdoch University and also a member of the Research Degree and Scholarships Committee.

While working at Murdoch University, Professor Zimmermann served on numerous academic bodies, including: the Vice Chancellor’s Awards and Citations Committee; the Academic Council’s Freedom of Speech in Policies and Procedures Advisory Group; the Academic Staff Collective Workplace Agreement Advisory Group; the Academic Staff Promotions Advisory Committee; and a couple of ad hoc committees for the selection of academic staff, including the committee that selected the Dean of Law. 

From 2012 to 2017 Professor Zimmermann served as a Law Reform Commissioner with the Law Reform Commission of Western Australia. As a Law Reform Commissioner he assisted in keeping the law in Western Australia up-to-date and relevant to the needs of society by making recommendations for the reform of areas of law referred to it by the State Attorney-General.

Throughout his career Professor Zimmermann has written a PhD thesis, a LLM thesis, a LLB Honours thesis, 13 academic books, 21 academic book chapters, 2 book prefaces, 52 law journal articles, 82 non-law journal academic articles, 26 government submissions, 11 law reform commission reports, and 150 articles for newspapers and magazines (The Australian, The Spectator, Quadrant, etc.)

His academic work is published in leading law journals and publishing houses, including Springer, Cambridge University Press, Edward Elgar, Monash University Law Review, International Journal of Constitutional Law (I.CON), Brigham Young University Law Review, The University of Queensland Law Journal, etc.

In January 2015, Professor Zimmermann was invited by the Tasmanian Chief Justice Alan Blow to address the Opening of the Legal Year in Tasmania. As the sole speaker, his presentation was attended by the Governor of Tasmania, the Premier of Tasmania, the Leader of the Opposition, the State Attorney-General, judges, lawyers and numerous other members of the legal profession from all parts of Tasmania. The service was followed by a reception at the Supreme Court where Professor Zimmermann was received as the Guest of Honour by the President of the Tasmanian Bar.

Professor Zimmermann is the only speaker to ever receive a standing ovation at a conference held by the Samuel Griffith Society – a learned legal society founded by former Chief Justice Sir Harry Gibbs and named after Sir Samuel Walker Griffith, the First Justice of the High Court of Australia. Some of the speakers at Samuel Griffith Society conferences include: 5 Governors-General and Governors, 5 Chief Justices of the High Court of Australia, 5 Justices of the High Court of Australia, 2 Prime Ministers, 6 Chief Justices of the States, 5 Justices of the Federal Court of Australia, 8 State Attorneys-General, and numerous other distinguished speakers.

Professor Zimmermann is a leading expert on the concept of The Rule of Law. He is the author of numerous articles and book chapters on the subject. He contributed a Chapter for the seminal book on the rule of law edited by the President of the American Bar Association (ABA). Titled ‘The Legal Doctrines of the Rule of Law and the Legal State’ (Springer, 2014), this book is a major reference on the subject, containing contributions of the world’s leading academics in the field, including Professor Zimmermann himself.

Professor Zimmermann chaired numerous international conferences. For example, in June 2019, he was the chair of the organising committee for a major conference held at Sheridan on religious freedom in the context of other human rights in general. Participating as moderator was the Hon. John Gilmour QC, and five members, both past and present, of the Western Australian Parliament, including former speaker Michael Sutherland. The Patron for that conference was former Prime Minister John Howard OM, AC.

This is just a very small sample of my numerous academic activities, achievements and accomplishments.

The above profile is, indeed, very far from exhaustive.

As mentioned, Mr Perrett dared also to challenge the credibility of my institution of higher education. He was obsessed with attempting to discredit Sheridan and did not focus his attention entirely on the subject of the inquiry.

This is absolutely reprehensible and Mr Perrett needs to understand that I left a comfortable tenured position at Murdoch University to be engaged in the exciting project of developing a new tertiary education provider in Western Australia.

Sheridan is a higher education institution grounded in the Baptist academic tradition. Baptists have a rich inheritance in higher education and were involved in the establishment of a number of independent colleges in England, including founding Bristol College (1679).

Several major higher education institutions in the United States also share a distinct Baptist heritage. The University of Chicago, Brown University and Temple University were originally founded by Baptists, and others, such as Baylor University, Mercer University, and Union University, still retain a strong Baptist identity today.

As for Sheridan itself, the Australian Baptist Education Inc. (ABE) is behind the establishment of Sheridan Institute of Higher Education. In Western Australia, Baptists have demonstrated an outstanding capacity for establishing and operating multi-million dollar not-for-profit institutions over the last 30 years. 

With regard to education, ABE is the third largest provider of private education in Western Australia, after the Anglican and Catholic churches. More than 9,000 students and 900 staff now study and work in open-entry Baptist schools. The combined total capital investment in Baptist education exceeds 80 million dollars, with combined gross revenue of 70 million dollars a year.

The Sheridan Institute of Higher Education was officially opened in January 2015 and its main campus is in the Perth CBD, adjacent to the train line and several bus routes. Sheridan currently offers undergraduate programs in Business, Science, and the Humanities and Social Sciences, in addition to postgraduate courses in Business Administration and Education.

Law represents the fifth academic discipline to be added to Sheridan’s higher education offerings, and is an important step in moving towards Sheridan’s objective of achieving university title. Although it is founded by members of the Baptist denomination, Sheridan has no religious requirements for admission. On the contrary, Sheridan welcomes students from all faiths or none to complete their chosen degree in collaboration with its academic faculty.

The Sheridan Statement of Academic Freedom notes that Baptists were at the forefront of the struggle for fundamental rights and freedoms. Baptists are traditionally driven by an unyielding commitment to the common good which is wedded to the principles of religious liberty and freedom of conscience. They are also committed to defending the basic right of individuals to freely associate with one another on the basis of shared beliefs, and to separate from each other if those beliefs diverge.

The origin of Sheridan’s commitment to academic freedom is found in a fractious group of English exiles living in Amsterdam in the early 17th century. In confrontational tracts and sermons, those first Baptists were among the earliest advocates for these three foundation principles of modern democracy: freedom of conscience, freedom of speech, and freedom of association. These principles continue to have immense relevance for the 21st century, and it is in the context of its rich Baptist heritage that Sheridan affirms its commitment to the important principle of academic freedom.

The proposal for the future Sheridan Bachelor of Laws is the result of two years of preparation by Sheridan Faculty, administration and the Board of Directors. Its development has been supported by the expertise of the LLB Course Advisory Council, a group of 19 experts representing the higher education sector and the legal profession, including the highly-credentialed John Gilmour QC, former federal court judge and member of the Legal Practice Board of Western Australia, and Emeritus Professor Gabriël A. Moens JD, LLM, PhD, GCEd, MBA, MAppL, FCIArb, CIArb, FAIM, FCL, FAAL. In 2003, the Prime Minister of Australia awarded him the Australian Centenary Medal for services to education. In June 2019 he was appointed a Member of the Order of Australia (AM) for services to the law and higher education. 

The LLB Course Advisory Committee subsequently sent out the proposal for independent review by two senior legal external academics – Professor Marc De Vos, Dean of Macquarie University Law School, and Professor Ian Benson, Professor of Law at the University of Notre Dame Australia, Sydney. The full reviews of these two experts are attached as an Addendum. Sheridan’s LLB program intends to achieve the highest possible standard of undergraduate education in law in Western Australia.  

For the reasons provided, I hereby request a formal apology from Mr Graham Perrett MP.

His behaviour was disgraceful and it reveals a lack of proper concern for the terms of reference, coupled with a serious element of anti-religious bigotry.

If you need any further information, do not hesitate to contact me.  Thank you very much in anticipation for your kind attention.

Yours sincerely,

Professor Augusto Zimmermann

Posted in Family Law, Government Inquiries, Hot Topics, War on Men | Leave a comment