Should “no means no” be changed to “only yes means yes” when it comes to consent between sexual partners?
Stuff’s #MeToo editor Alison Mau investigates how an “affirmative” model of consent could change the landscape, and how it might have made a difference for one woman who fought for years for her case to get to court.
* Consent: why it is so complicated
* Fewer rape prosecutions show the law is ‘failing victims’: researchers
* Rape victims say their complaints still aren’t being taken seriously
* Man admits rape seven years after being acquitted at trial
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2004: JAZMINE’S STORY
When police caught up with the man who raped Jazmine Bell, he did not seem rattled. It was as though he believed he’d done nothing wrong at all.
Thanks to multiple traumas throughout her early life, Bell had her mental health struggles, including acute Post Traumatic Stress Disorder and Dissociative Identity Disorder – a condition once known as “multiple personalities”.
But she was getting on with life; working hard with counselling, building a life and a career. When Bell talks about her work in the music and events industry, she lights up – a brief flare of happiness in the midst of a pretty grim tale. She loved being part of a team producing concerts and festivals. She loved her workmates, and the buzz of creating something beautiful for the crowd.
A colleague and Jazmine had fallen into a casual relationship; sex but no strings. Until Bell decided it was over.
On the day, she texted him wanting to talk to him about returning to a professional relationship. But as she waited, Bell grew anxious, and began to “cascade” – the medical term for a regression to a much younger personality.
“And then I ended up in the bed just like a child does, like a child thinks, I’ll go to bed and everything will be okay.”
When her colleague arrived minutes later there was no answer to his knock, so he paced outside the house, banging on doors and windows. Through the bedroom window, he saw her curled up and threw a bolt at her to see if she was awake.
Bell had become catatonic and did not move. When he broke in through her bedroom window, she was able to hear and feel, but could not move or speak.
He raped her in her bed.
“He said nothing through the whole experience. Right from unscrewing the bolt and throwing it at my head, he said nothing.
“And that to this day makes my skin crawl.”
When it was over, her colleague got up and poured himself water before rifling through Bell’s CDs. Coming out of her catatonic state, Bell rushed to the bathroom to throw up and saw him leave with the CDs. Later, this would become a bizarre but important point in the police investigation, as Bell tried to get Wellington detectives to take action.
“I would never loan my CDs to anyone,” she told them.
She remembers police were sympathetic at first, talking about an arrest. But a detective assigned to the case soon set her straight.
“He kept on saying I know you didn’t consent – that’s all the way through the transcript [of the interview]” Bell explains.
“But he said, where the law sits, it was down to whether [he] believed I consented or not.”
The detective said Bell’s colleague admitted he knew Bell was unconscious for at least part of his time in the apartment, but claimed when he initiated sex she had woken up and agreed.
“[The detective] kept on coming back to the fact that I had been having a sexual relationship with this man before.”
Jazmine’s long-time psychologist, Amberley Meredith, scoffs when she hears this repeated 15 years later.
“Catatonia (is) like someone who’s just been in a car crash,” she explains.
“You’re not going to sit there with someone who’s just been in a major car crash and say, do you feel able to consent to decisions about your life and your body at this moment?’
“There’s absolutely no logic to that.”
The detective insisted they couldn’t take the case to court while her colleague said he thought she had consented. The defence would pick holes in your story, they told her, and the man was never charged.
Bell fought to have the case reopened, even getting a friend to secretly tape a conversation with the colleague about it, hoping some kind of confession would help. It didn’t.
After years of pushing, Bell was notified all the evidence had been destroyed at the Wellington area ESR (forensics testing centre), when they’d run out of storage room.
When she complained, she was given $200 for the sheets that had been taken from her bed for forensic testing.
WHAT THE LAW SAYS
The question of consent would no doubt have been central to Jazmine Bell’s case, had it got as far as court. She said she couldn’t possibly have consented; he said he thought she had.
He couldn’t show any proof of that consent, but the law does not ask the accused to prove it.
Instead, it asks them whether they had a “reasonable” belief of consent. The Crimes Act does require the accused to have “taken steps” to ascertain consent, but in Bell’s case no judge or jury was given the opportunity to test whether that had happened.
Even when a case does get to trial, the way the legislation currently interprets consent causes major difficulties, says Victoria University Criminologist Dr Samantha Keene.
“At the moment we have a weird situation whereby the consent law actively states conditions by which consent can’t be granted.
“But we don’t have a definition of what does constitute consensual sex.”
Overseas, the UK and a number of European countries have consent definitions, and Canada has an “affirmative” model – where there is legal consent only if you are saying or doing something to show clearly that you agree to the sexual activity.
Here in New Zealand, similar change has been resisted. The last time New Zealand amended its consent laws – in 2004 – it was more of a tinkering than an overhaul, intended to address the rise of “date-rape” druggings.
At the time, the following clauses were added to the Crimes Act 1961:
128A(3) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious, and
128A(4) A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
The Law and Order Select Committee was asked to consider adding a “positive” definition of consent, but declined because “changing this difficult and elusive concept can only add to further complexity to an already difficult concept.”
Fifteen years later, the law still has no positive definition of what consent is. Instead, it talks at length about the “absence” of consent and how that has to be proved, to get a conviction.
The list of how a person can’t reasonably consent to sex includes:
- if they were forced or threatened
- if they are physically, intellectually or mentally impaired to the point that they can’t refuse
- If they say yes because they are mistaken about who the other person is, or about the “nature and quality” of the sex
- if they are asleep or unconscious
- or if they are so drunk or affected by drugs that they can’t consent or refuse to consent.
It’s a long list, but the Act specifically states it’s by no means an exhaustive one, and much of it’s application will be guided by case law.
Keene argues the current legislation considers the issue from the wrong angle entirely.
“We seem to be okay talking about the negative aspects of consent, but not with a conversation about affirmative expressions of consent.
“Without having a clear idea of what it is, rather than what it’s not, I think we’re in drastic need of an overhaul.”
The Saxon Mullins effect
In Australia, the public outcry over one of the most notorious rape cases in a generation, has prompted a re-examination of consent laws.
On her first night out in Sydney, teenager Saxon Mullins was led to an alleyway behind a nightclub by the club-owner’s son, Luke Lazarus. Mullins, who had been drinking heavily with friends, says he swore at her, told her to get on her hands and knees, and raped her. Through two separate trials and two appeals stretching over the course of three years, Lazarus maintained the sex was consensual.
Mullins says she had told Lazarus no, but then “went on auto-pilot” and froze completely.
At his first trial in 2015, the prosecution had to prove three things to secure a conviction; that Lazarus and Saxon Mullins had sex, that Mullins did not consent, and that Lazarus knew that and didn’t care. He pleaded not guilty, but was convicted and jailed for a minimum of three years.
An appeal overturned the verdict and a retrial was ordered. He was acquitted by Judge Robyn Tubman, who ruled that Mullins had not taken any “physical action” to move away from Lazarus in the alleyway, therefore he had a reasonable belief that she had consented. There was another appeal, which ruled Judge Tubman had made a mistake.
This intricate legal tangle ended with Lazarus keeping his freedom; the final judge finding yet another trial would be too unfair to a man who had already spent 11 months in jail.
But the case led to the New South Wales Attorney General, in May 2018, ordering the state’s Law Reform Commission to review consent laws and suggest whether change was needed.
Seventeen months and more than one hundred official submissions later, the Commission released its draft proposals in October.
Would it change things here?
Some of the NSW Commission’s suggestions are ones we already have here; notably, that a person does not consent only because there was no verbal (or physical) resistance.
But the Commission also proposed explicitly clarifying the meaning of consent, and says “sexual activity should involve ongoing and mutual communication, decision-making, and free and voluntary agreement”.
That would come closer to the Canadian model, which states there is legal consent only if you are saying or doing something to show clearly that you agree to the sexual activity.
It would “shift the onus of proof”, says Keene, and could lead to “more equal” outcomes – and might have made a difference in Jazmine Bell’s case.
“The alleged perpetrator could be required to describe how they knew the other person was consenting throughout the process, so, for example, if the victim was asleep or unconscious, they would need to demonstrate why they thought they had obtained enthusiastic consent from the other person,” she explains.
But it would not be a game-changer across the board, says Canterbury University Professor of Law Elisabeth McDonald The Crown would still have to prove the accused had no reasonable grounds to believe consent was present.
She describes a case where a woman was drunk and had no memory of the sex, but said she would not have consented.
The defence called as a witness, a doctor who testified that even at the level of intoxication the woman described, she could have given consent.
“And that’s the end of the case, because the Crown has to prove (it)”, she says.
“You can understand why the Crown and police are reluctant to push that kind of case because the chance of a conviction is so slim.
“That’s concerning because ‘she came on to me, she just doesn’t remember’ is an easy thing to say.”
McDonald is soon to release a book examining how rape myth impacts the fair trial process. She’s examined 40 cases, 26 of which included evidence the woman said “no” or pushed the man away.
“Of those cases, only 50 per cent resulted in a conviction.
“There is (still) a belief that no means yes. She said no but she was still wearing no bra. She said no but still invited him to the bedroom.
“Changing the definition from the negative to the affirmative wouldn’t help in those cases, because [the woman] already said no.”
McDonald said the NSW proposed changes were disappointing in one respect – the thorny issue of how drunk is too drunk to consent.
“I thought they might start the intoxication discussion in a more sophisticated way, and that would help us here in New Zealand.”
The NSW proposals sparked vigorous pushback, including from lawyers groups who say it will simply make things harder for everyone.
Spokesperson for the state’s Criminal Bar Association, Greg King, said in October the changes were “impractical” as they would ask juries to analyse “every detail of what happened between the parties and whether or not there was affirmative consent.”
The ALA submission suggested this might make for a rougher time on the stand for complainants, who risked having their sexual choices and practices ever more thoroughly picked over.
That’s something Green MP Jan Logie, who is leading legislative reform for sexual and domestic violence here, would be unhappy to see.
Logie has been hustling legislation change since the last election, and her initial salvo, the Sexual Violence Legislation Bill, is structured to make the plaintiff’s experience in court less traumatising.
Logie is optimistic about the role of judicial directions – where the judge is required by law to instruct juries about things such as “freeze response” and intoxication – and says the Bill also carries “the message that consent can’t be blanket and that it has to be sought each and every time people are engaging in sexual activity”.
She says further changes to consent law are “on the table,” and she “100 per cent” agrees there must be work on tightening definitions of how-drunk-is-too-drunk to consent.
More concrete work will have to wait until after the election, but Logie says it’s important to continue. Dr Keene agrees.
“Sex is an ongoing act and arguably, all sex should be mutually pleasurable for both parties – so why not have that encapsulated in our law?” she said.
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