As a barrister, I've seen how the law is failing women in and outside of court. Here's why I'm calling for radical change...
“The laws surrounding consent simply do not protect victims, and they need to change.”
This article references sexual assault and rape.
In 2013, Saxon Mullins, an 18-year-old woman, went clubbing with some friends in Sydney, Australia. At a nightclub, she met a man named Luke Lazarus, the son of a prominent nightclub owner. After a brief conversation, Lazarus led Mullins to a nearby alleyway where, according to Mullins's account, he raped her. Initially, Lazarus was convicted of rape, but this was later overturned on appeal.
The not-guilty verdict was devastating for Mullins. During the court proceedings, Mullins felt pressured to prove that she had said ‘No’. She described how she froze, a common response to sexual assault, and complied out of fear. As a result, the appellate court ruled Lazarus had reasonable grounds to believe Mullins had consented. He later said, “Her physical body language and everything she did physically told me she wanted to be there.”
Mullins, feeling a lack of justice through the criminal process, decided to share her story publicly. In 2018, she waived her anonymity and spoke out, sparking shockwaves throughout Australia. Her courage in speaking out prompted a national conversation about consent and ultimately led to the introduction of ‘affirmative consent laws’ – in which a person must actively say or do something to communicate their sexual consent – in New South Wales.
Back in the UK, a national conversation about consent is long overdue. Rape and sexual assault are endemic in society, yet these crimes often slip under the law's radar.
As it stands, less than 1% of reported rapes lead to a conviction. That's not even accounting for the fact that most rapes go unreported. Let's face it; we live in a society where rape is becoming decriminalised.
Certainly, harmful biases surrounding rape are a significant barrier to victims seeking justice, preventing them from speaking out. But this isn't the full picture. What if the law is a barrier in itself?
Allow me to introduce you to the UK's laws on sexual consent. The Sexual Offences Act 2003 law states that “a person consents if he agrees by choice and has the freedom and capacity to make that choice.”
However, the Crown Persecution Services has stated that “proving the absence of consent is usually the most difficult part of a rape prosecution, and it is the most common reason for a rape case to fail.”
Due to the high bar surrounding consent laws, victims often feel like they are on trial rather than the perpetrators. A 2022 joint inspection by the HM Inspectorate of Constabulary and Fire and Rescue Services (HMICFRS) and HM Crown Prosecution Service Inspectorate (HMCPSI) published a report on the failings of the justice system for rape victims, finding that “victims often felt they were the ones being investigated or standing trial, rather than the focus being on the accused.”
It’s not enough to try and change the culture surrounding rape. The laws surrounding consent simply do not protect victims, and they need to change.
Is there another way? I think so. This is why I'm campaigning to incorporate affirmative consent into UK law – just as New South Wales has done. Affirmative consent is defined as “the active, mutual, and voluntary agreement to participate in a sexual act.”
Right to Equality, an organisation I founded to campaign to change sexist and discriminatory laws, is working with the Women's Equality Party and other campaigners to explore whether affirmative consent could bring about the changes we desperately need.
“Affirmative consent places the responsibility on potential perpetrators to ensure explicit agreement.”
We commissioned Oxford Pro Bono Publico at Oxford University to research affirmative consent law in other jurisdictions, and their results showed that a "yes means yes," approach shifts the focus from the absence of a "no" to the presence of explicit and ongoing consent. By emphasising the importance of affirmative consent, these laws challenge the assumption that silence or lack of resistance implies consent. Instead, they emphasise the need for clear communication and mutual desire.
One of the essential benefits of affirmative consent laws is the empowerment they offer to survivors of sexual assault. By defining and reinforcing the concept of affirmative consent, these laws provide survivors with the support and validation they need to come forward and seek justice. Affirmative consent places the responsibility on potential perpetrators to ensure explicit agreement. This change enables survivors to reclaim their narratives and reduces the stigma and shame often associated with reporting sexual assault.
Affirmative consent laws could have profound social and cultural significance. They carry a symbolic challenge to societal norms, shifting the understanding of consent in sexual relationships. These laws could prompt individuals to engage in open conversations about boundaries, desires, and expectations, fostering a culture of mutual respect and communication.
This cultural shift towards affirmative consent can have a ripple effect, especially among school-aged children who are shaping their understanding of relationships. By promoting healthy discussions around consent, affirmative consent laws help break down harmful stereotypes surrounding sexuality, reducing the prevalence of sexual coercion, assault, and harassment.
Ultimately, these laws could contribute to a society where consent is recognized as a fundamental pillar of healthy and respectful relationships.
Rape laws in the UK are inadequate and regularly fail to protect victims of sexual assault. We must combat the alarming decriminalisation of rape – could affirmative consent laws be the answer?
Affirmative consent laws shift the focus from the absence of a "no" to the presence of explicit and ongoing consent. By emphasising clear communication, mutual desire, and ongoing agreement in sexual encounters, these laws empower survivors and hold potential perpetrators accountable. In addition, these laws would provide survivors with the support and validation they need. By placing the responsibility on potential perpetrators to ensure explicit agreement, affirmative consent laws help to address harmful biases and challenge the assumption that silence implies consent.
In my opinion, it's time for the UK to join others in taking this vital step towards ensuring justice for victims and preventing the decriminalization of rape. By redefining consent and fostering a culture of clear communication and respect, we can work towards a society where sexual assault is unequivocally condemned, survivors are supported, and justice is served.
Originally Published: Wed 10 August 2023 on Glamour UK.