NSW sexual consent law review 'insulting'

Tiffanie Turnbull
·3-min read

"What was the point?"

More than two years after Saxon Mullins told the story of her alleged rape as an 18-year-old virgin in a Sydney alleyway, a review of the NSW consent laws has stopped short of recommending a change that would have jailed the man.

The review, which was sparked when Ms Mullins came forward, has left her bitterly disappointed and personally insulted.

"If we're looking at it from the perspective of my case, with these recommendations, with this report, would it have changed the outcome of my case?" she told AAP on Thursday.

"If not, what was the point?"

Ms Mullins became the face of a national push to strengthen sexual consent laws in May 2018, after telling the ABC how she was anally raped behind a Kings Cross nightclub in 2013 by a man she'd met only minutes earlier.

Two trials and two appeals later, a judge found the man involved had no reasonable basis for believing she had not consented, but acknowledged that Ms Mullins - in her own mind - had not consented.

Within 24 hours of Ms Mullins' interview airing, Attorney General Mark Speakman referred the laws to the Law Reform Commission for a review.

The report, which was tabled in parliament on Wednesday, left her "immediately deflated", Ms Mullins told AAP.

"I just thought 'God, I'm so tired of having to fight every step of the way'," she said.

"It can feel a bit performative when they come up with nothing."

Among the suite of recommendations made is that the law be adapted to clarify that a lack of physical or verbal resistance to a sexual activity is not consent.

Judges and juries must also consider whether the accused said or did anything beforehand to determine whether the other person consented.

But the review has not recommended a model, like that in Tasmania, which requires both parties to take reasonable steps to ascertain consent.

Ms Mullins says that leaves a massive loophole.

Offenders should not be able to rely on the defence of a reasonable and honest belief they had consent without taking certain steps, she said.

"It's not this radical, revolutionary thing that we're asking for," Ms Mullins said.

"It actually should be standard that you're checking with the other person, and then the other person is checking with you."

She also found the commission's claim that the law already enshrined some of the principles of communicative consent "personally insulting".

"It is absolutely a slap in the face to me directly."

Ms Mullins and other advocates had shared their concerns after a draft of the review was released in October, but nothing was changed.

"NSW could have led the way on consent law ... they had the opportunity and the time to do that," Ms Mullins said.

"If we're going to do a two-and-a-half year review, we really should be legislating more change than this."

Other recommendations made by the review are that the law recognise the "freeze" response that can occur during an attack, allow for the withdrawal of consent at any time, and expand a non-exhaustive list of circumstances in which a person cannot consent.

The law should also define "stealthing", when someone removes a condom without their partner's knowledge, as a form of non-consensual sex, the review said.

Mr Speakman on Wednesday said the government would consider all 44 recommendations and respond next year.