The law of sexual assault is vitally important. Community understandings of consent, however, aren’t always clear. Law Lecturer Katherine Fallah breaks down the legal jargon to explain why the ‘grey’ areas really aren’t that grey at all.
Every time I teach the law of sexual assault, I brace myself. I teach a lot of tough and gory material: war crimes, genocide, torture, murder. But, as a lecturer who habitually makes the effort to read the room, I’m always struck by how many of my students are personally invested in what I have to teach them about the law of sexual assault.
The wide eyes, the furrowed brows, the shuffling in seats and the insistent, sophisticated requests for clarification: these can’t all be symptoms of my students’ discomfort with the sudden shift to explicit sex-talk in the classroom (although, let’s be real, it’s a factor).
Taken as a whole, these observations tell me that I’m not just teaching my students about abstract legal principles. I’m offering them a vocabulary for framing their own intimate encounters and for making sense of the stories they’ve been told by others.
Here are three key revelations that seem to surprise, provoke and resonate with my students, year in and year out.
The grey zones that aren’t so grey
We often hear talk of the ‘grey zones’ of consent but, as I explain to my students, the legal boundaries of consent are far more black-and-white than we might expect. This is because the NSW legislature has gone to great lengths to clarify the law, with many of the Crimes Act’s consent provisions inserted to overcome historical injustice in the courts, and to counter the ‘rape myths’ that have endured for centuries.
One example of a rape myth is that we can assume a person consented to sex if they didn’t protest, fight back, or scream for help. The law of NSW rejects this rape myth by offering a positive definition of consent. We know that fear and trauma responses vary from person to person and may entail ‘fight, flight or freeze’. In recognition of the ‘freeze’ response, and as part of a general policy acknowledgement that a person shouldn’t have to take steps to prevent others from raping them, mere ‘submission’ to sexual intercourse does not amount to consent. Instead, the law requires that a person ‘freely and voluntarily agrees’ to the sexual intercourse.
The legislation also offers clear examples of situations that cannot, as a matter of law, amount to consent. These include: where the person doesn’t have capacity to consent (because of factors like age); where the person doesn’t have the opportunity to consent because they are unconscious or asleep; where a person agrees to sex because of threats of force or terror or because they have been unlawfully detained; or where a person has only agreed to sex because of a particular mistaken belief (such as mistaken identity).
The legislation specifies that a person might not consent due to factors such as substantial intoxication or coercion, or because of an abuse of power by a person in a position of trust or authority. Consent needs to be continuing and it can be withdrawn at any time, for any reason. And the law recognises that both parties must consent: it rejects, at least formally, the heteronormative, gendered idea that men demand sex and women ‘permit’ men to have sex with them. In these respects, the law of consent is clear and robust.
The justice gaps
But, in order to secure a conviction for sexual assault, it’s not enough to show that the accused had non-consensual sex with another person. The prosecution must also prove, beyond a reasonable doubt, that the accused ‘knew’ the other person was not consenting. It’s this element, the ‘guilty mind’, that makes the accused culpable. As a matter of law, an accused will ‘know’ about non-consent in a number of situations, including where he or she considered the possibility of non-consent but went ahead with sex anyway, or didn’t even bother to consider the question of consent. At this stage, the court must consider all the circumstances of the case, including any steps that the accused took to ascertain consent. In other words, there are positive legal obligations to check that the other person is consenting (something that the appeals court recently confirmed in the high-profile case of Lazarus).
Sometimes a court will be convinced that the accused actually had non-consensual sex, but won’t be satisfied that the accused ‘knew’ the other person didn’t consent. This will result in an acquittal, which, in accordance with fundamental principles of criminal law, is the proper and just outcome for the accused. But it leaves us with a deeply problematic justice gap, because we have a complainant who has experienced a violation, but we have no crime.
A ‘not guilty’ verdict is essentially a legal determination that there was no crime of sexual assault, and this can be misconstrued as meaning the complainant didn’t experience the violation of non-consensual sex. For many complainants, so often women, this feels like nothing short of erasure. The criminal law has failed to bridge this justice gap.
The limits of the criminal law
As we wade through the case law on sexual assault, students see that sometimes the obstacles to justice lie in problematic or contested public attitudes to sex and gender norms. Sometimes jurors bring their personal prejudices and oftentimes the laws of evidence and criminal procedure bring on injustices of their own.
And it also emerges that, even with all of the legislative efforts to draw indelible lines in the sand, there are limits to the law of consent as a framework for regulating sex. The law of consent doesn’t demand, for instance, that sex caters to the particular desires of participants, that everyone feels they have been treated with respect, that no one feels used or cheated, that everyone gets the sex they want, that the sex is fun or hot or even ‘not disappointing’.
Sometimes the criminal law has ill-considered consequences, constraining sexual practices that are desired and welcomed by both (or all) parties. And, so often, sexual assaults in the ‘grey zones’ don’t even come to the attention of police. There are limits to what we can ask of the criminal law.
There is an interpersonal, human element to sex that means we will always need to be able to negotiate the pleasures and frustrations of sexual intimacy. These are conversations we have as individuals and as communities: the law of sexual assault is vitally important but it can only take us so far. Some of these questions need to be resolved outside the courtroom and, indeed, outside the classroom.
You can take the first step to improve your understanding of consent by completing Consent Matters training at uts.ac/consent-matters