Criminal Law

By Peter Woodhouse


Proposed changes to consent laws are political correctness gone mad!

Over the next fortnight the ACT Justice and Community Safety committee will be holding hearings into a bill proposing changes to the definition of consent in sexual assault matters to “free and voluntary agreement” and require an accused person to prove they knew or were “satisfied on reasonable grounds” that consent was freely given.

This bill and hearing, and the similar one into the laws of consent in NSW, appear to be knee-jerk, talkback radio-inspired reactions to the acquittal of Luke Lazarus after his retrial in the NSW District Court in 2017, when the presiding Judge found that his belief in the complainant’s consent was reasonable.

Recently, the ACT Bar Association has said the proposed amendments undermine the presumption of innocence.  True.  It also shifts the onus of proof onto an accused to prove consent or satisfaction on reasonable grounds of consent, as opposed to the current lower threshold of ‘belief’.

Whilst it’s not very P.C. to say it in the current climate, the fact is, rape allegations are easy to make and very difficult to defend.  Very few sexual assault matters involve the violent rape of a young woman walking home at the hands of a stranger.  In most matters, the issue of consent is very hazy.  There is also the reality (which no one really ever wants to say out loud) that not every complainant who alleges sexual assault is telling the truth.

As a criminal defence lawyer, I have been involved in two rape trials so far this year that should never have come before the Court.  Both matters were ‘bad decisions’ dressed up as sexual assaults.  Whilst both my clients were acquitted, the charge and trial process had a significant and irreversible impact on their lives and livelihoods and that of their families.  This is happening often enough in the Territory as it is and the proposed changes to the consent laws will only increase the prevalence of flimsy allegations.

The fact is a sexual liaison is not a business transaction.  A “yes means yes” approach or “free and voluntary agreement” definition of consent is artificial.  Consent can and often is indicated in numerous ways and usually not verbally.

Ultimately, whilst the proposed changes to the consent laws will be quite good for my business as a criminal defence lawyer if they are adopted, I anticipate it will present considerable problems to our community and significant strain on our justice system with the likely influx of these allegations, charges and criminal trials.