Shire Matters with Mark Speakman: Consent - A matter of common sense

Mark Speakman with Saxon Mullins.
Mark Speakman with Saxon Mullins.

Over eight years ago, a young woman named Saxon Mullins was ushered into a dark lane behind a Kings Cross nightclub. What happened there became the subject of two District Court trials, two appeals to the Court of Criminal Appeal and a Four Corners documentary.

What Saxon didn't know on that night in May 2013, as she tried to make sense of what just happened to her against her will, was that those events would be the catalyst for a generational change to the law of sexual consent in NSW.

The second judgment of the Court of Criminal Appeal in May 2017 was somewhat of a non-result. The Court would have sent Luke Lazarus back to trial for the sexual assault of Saxon Mullins, except that to do so, it found, would be 'oppressive'.

Those circumstances triggered in my office intense consideration of the justness of that outcome where the trial judge accepted that Saxon hadn't in her own mind consented.

The discussion and debate on consent spread across NSW and indeed Australia. Victim-survivors, like Saxon, took up the cudgels for reform. Showing immense courage, she shared her story with the world.

The morning after the Four Corners episode I am that Girl went to air, I announced my decision to refer the question of NSW's law of consent to the NSW Law Reform Commission.

The NSW Government accepted all the Law Reform Commission's recommendations and more. This week, NSW Parliament passed reforms which go a step beyond the recommendations, introducing an affirmative model of consent.

It's pretty simple. An accused won't have a reasonable belief that the other party is consenting unless the accused says or does something to ascertain consent. I call it common decency. Saxon calls it common sense and I agree.

The passage of these laws represents the culmination of Saxon's long fight to have our consent laws reflect the reality of sexual violence. If these new laws also mean that more people, in their most intimate moments, prioritise respect, well that's a good thing too.