People accused of sexual assault will need to prove they took steps to obtain consent, as part of a major overhaul of sexual consent laws in New South Wales.
NSW Attorney General Mark Speakman announced the reforms on Tuesday that he says will strengthen and simplify laws in the state and protect victim-survivors.
That includes adopting the so-called "affirmative consent" model, which means a person does not consent to sexual activity until they say or do something to communicate it.
It also means an accused person's belief in consent will not be reasonable unless they said or did something to ascertain consent from their sexual partners.
For Saxon Mullins, the announcement of the proposed changes is an emotional one.
She has been fighting for affirmative consent since her own sexual assault case sparked a review in 2018.
Back then, Ms Mullins told her story of a sexual assault encounter in 2013 in a Kings Cross laneway on the ABC's Four Corners program.
Although the court found she did not consent to sex with Luke Lazarus, the judge ruled he had the mistaken but genuine belief she had.
He was acquitted in 2017.
Speaking to SBS News on Tuesday, Ms Mullins said the reforms are "an important step into changing the way that we talk about sexual violence and hopefully one small step towards ending it".
“I think affirmative consent really falls in line with how we should be engaging in sexual activity just on a day-to- day basis," she said.
“It’s about constant communication between consenting parties who are having that ongoing conversation of reassured consent. Making sure it’s legislated in the right way is really just making sure that we are legislating the way we should be speaking to each other anyway in these encounters."
Mr Speakman referred a review of the state's consent laws to the NSW Law Reform Commission soon after Ms Mullins' story aired.
The commission handed the government a 270-page report last September, detailing that the law should be changed to specify that a person has not agreed to sex without saying or doing anything to communicate that consent.
Mr Speakman said on Tuesday the state government would be taking up all the commission's recommendations - and going a step further by introducing a requirement of affirmative consent.
Mark Speakman says six NSW hospitals will aim to identify victims of domestic violence and offer them support services. Source: AAP
“The accused will have to have done something or said something reasonable in the circumstances to ascertain consent,” he said.
“Consent is something that is given voluntarily by agreement … it can be withdrawn … consent to one sexual activity is not consent to any other sexual activity."
“Self-intoxication of the accused is not an excuse for failing to form a reasonable belief," he added.
Mr Speakman thanked Ms Mullins for her "extraordinary bravery" in sharing her story and for her advovacy for victim-survivors "which have contributed to this historic reform".
The new legislation is hoped to be in place by the end of the year.
Dr Rachael Burgin, executive director at Rape and Sexual Assault Research and Advocacy (RASARA) said the reforms are “long-awaited".
“We still need to make sure the bill passes, but the bill is a huge win for survivors,” she told SBS News.
Dr Burgin said affirmative consent needs to exist in two realms of the criminal law.
Dr Rachael Burgin is also a lecturer in criminology and criminal justice. Source: Supplied
"The first is around the issues about whether a person was or was not consenting … and we also need to see affirmative consent being applied in the context of an accused person's state of mind, or the fault element of the crime," she said.
“In NSW, there are a few different ways we can establish guilty mind … the most controversial being the reasonable grounds test which is the test which was relied on in Saxon’s case and it was the test which was subject to the most scrutiny and criticism."
Dr Burgin said the potential reforms go specifically to addressing affirmative consent in that context.
"That is what makes it exciting and separates it from every other state," she said.
In NSW, it is estimated about three per cent of sexual assault cases reported to authorities result in a conviction.
NSW Police Commissioner Mick Fuller said the changes will provide “an immense amount of clarity” around sexual violence and consent.
“I spoke out in March this year about consent … since then, we’ve had 898 adults come forward reporting sexual violence,” he said on Tuesday.
“We’ve been able to prosecute less than 10 per cent of those.”
Rachael Natoli, director of the Lokahi Foundation, which provides a wide range of support services for women who have been victim-survivors of domestic and family violence, said the proposed changes in consent laws are a step in the right direction.
“What this change does is what we want to do with domestic and family abuse - it puts the responsibility on the perpetrator rather than on the victim-survivor," she told SBS News.
Rachael Natoli is a survivor of domestic violence and the director of the Lokahi Foundation. Source: Supplied
“It’s a huge power shift.
“I hope that it will empower more victim-survivors to come forward and make those reports because we know the statistic for reporting is incredibly low.”
Ms Mullins said she hopes the change in consent laws will help victim-survivors feel that their case will be taken seriously and taken further.
“A lot of times, survivors may feel that their case will be stopped right at the policing process because there’s no scope for them to go furthe - or stopped at the prosecution process because they don’t think they would be able to successfully prosecute such a case,” she said.
“Hopefully, it means that we’re seeing more people, should they choose this path of justice, make that choice with a bit less fear about these legal loopholes and issues.”
If you or someone you know is impacted by sexual assault, you can call 1800RESPECT on 1800 737 732 or visit .
