Sexual Consent Debated After Acquittal in Australia Rape Case
Posted May 8, 2018 8:03 p.m. EDT
Updated May 8, 2018 8:06 p.m. EDT
MELBOURNE, Australia — A Sydney rape case that dragged out for almost five years — through two trials, a conviction, two appeals and the suspect’s eventual acquittal — has set off a flurry of debate in Australia on what constitutes sexual consent.
The issue was reignited by a report by the Australian Broadcasting Corp.'s flagship news program, “4 Corners,” highlighting the case of Saxon Mullins, who was 18 when she said she was raped in a nightclub alleyway.
On Tuesday, the morning after the television report ran, the attorney general of New South Wales, which includes Sydney, announced a review of the state’s sexual consent laws.
Attorney General Mark Speakman said that the state had a “systemic problem with sexual assault reporting and convictions” and that the conviction rate in such cases was around 55 percent.
The contentious issue of what constitutes sexual consent and whether the law properly reflects contemporary sexual encounters was at the core of the winding case involving Mullins, who went public for the first time in the dramatic TV report.
Mullins asserted on the program that at a Sydney nightclub in 2013 she met Luke Lazarus, then the 21-year-old son of one of its owners. He invited her to see a “VIP area” and guided her to an alleyway. There, they began kissing, before, she said, Lazarus demanded that she get on her knees and proceeded to rape her anally. She said she was a virgin at the time.
Mullins told the news program she was on “autopilot,” wanting to get away. She said she thought, “Just do what he says and then you can go.”
She added: “I just kind of froze, you know. I was just trying to, like — and I know it doesn’t make sense but — block it out. Just wait till it was over.”
In the trial that followed, a jury convicted Lazarus, despite his testimony that Mullins never said “stop” or “no.” He spent 11months in jail before he won a jury-less retrial, where he was acquitted. State prosecutors pushed for a third trial, but an appeals court deemed the request unfair. The legal process lasted almost five years.
In acquitting Lazarus, Judge Robyn Tupman said that testimony from a female friend of his about sex on a first date had given her “insight into contemporary morality” — conveying Lazarus’ hyperaggressive behavior as within the bounds of modern sexual norms.
While Tupman acknowledged that Mullins did not actively consent to the sex, she said her ruling focused on whether Lazarus knew she had not consented — a wrinkle that many view as a main limitation of the law.
Australia’s laws on the issue vary by state and territory. In announcing the commission into sexual consent laws, Pru Goward, the New South Wales minister for the Prevention of Domestic Violence and Sexual Assault, said she believed the state should model itself after the state of Tasmania, where sexual consent needs to be active.
“You must explicitly ask for permission to have sex. If it’s not an enthusiastic yes, then it’s a no,” Goward said.
“The Tasmanian legislation is probably the most victim-centered,” said Helen Cockburn, a lecturer in criminal law at the University of Tasmania. “Where the victim is passive, there’s a presumption that they’re not consenting.”
In many other Australian jurisdictions, courts will look to see whether the victim actively resisted, to satisfy that they were nonconsenting, Cockburn added.
But discussion, too, has swelled around sexual culture in Australia and whether changing the law can effect the change that victims of sexual violence seek.
“Law reform is not necessarily going to give us the answers that we want,” Cockburn said. “I think there are problems around consent literacy.”
Mullins said in the televised interview that a bit of education could clear up a lot of uncertainty. “Enthusiastic consent is really easy to determine. I think if you don’t have that, then you’re not good to go.
“All you need to say is, ‘Do you want to be here?’ And, very clearly, ‘Do you want to have sex with me?'”
Kate Bettes, 24, a journalism student in Sydney, said: “I think it’s not only the laws, but the understanding and culture around consent in Australia, and around the world, that are horribly confusing. It should not only be ‘No means no,’ but more importantly, ‘Yes means yes,'” she said
Groups pushing for tighter laws also say that a fundamental paradigm shift is needed in Australia.
“People are still going to blame victims,” said Nina Funnell, director of End Rape on Campus Australia, an advocacy group. “Unless we address those attitudes and beliefs surrounding consent, very little will change.”