CONSENT & SEXUAL ASSAULT – WHEN NO MEANS NO!

Wednesday 14^th November 2007

Rev Fred Nile MLC, Leader of the Christian Democratic Party, has strongly supported the NSW Government in moves to define consent in regards to Sexual Assault. Rev Nile gave the following speech on the topic in the NSW Parliament on Tuesday, 13^th November 2007.

“The object of the Crimes Amendment (Consent—Sexual Assault Offences) Bill 2007, which is an important bill, is as follows:

(a)    to define "consent" for the purposes of sexual assault offences as free and voluntary agreement to sexual intercourse, and

(b)   to include in cases where consent to sexual intercourse is or may be negated: incapacity to consent, intoxication, persons who are asleep or unconscious, unlawful detention, intimidatory or coercive conduct and abuse of a position of authority or trust, and.

(c)    to provide that a person commits sexual assault if the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

Members would be aware that this legislation arose after lengthy debate in the community about the law of consent and what appeared to be occurring in some cases. The definition of "consent" seemed to be favouring either an individual rapist or, in some cases, gang rapists. In the past I have raised concern about the exclusion in legislation of the historic term "rape" and the inclusion of the term "sexual assault", which I regard to be a vague and watered-down definition. The term "rape" could still include various categories such as rape, aggravated rape, gang rape, violent rape and sadistic rape, and different penalties could be imposed. However, that is not what is proposed in this legislation.

This bill arises as a result of the report of the Criminal Justice Sexual Offences Task Force that was published in April 2006 and that contains 70 recommendations. It was a comprehensive review of the law in this area—perhaps the most comprehensive review in the past 20 years. A number of government and non-government agencies were represented on the task force, including those representing women's and victims interests, such as the Rape Crisis Centre and Women's Legal Services, members of the legal profession from the prosecution and defence, the judiciary, the courts, police, corrections, health, community services and academics. From the briefing we had from the Bar Association I believe that there is still some disagreement about whether the task force went into the detail of this legislation. One member of the Bar Association who was represented on the task force said that he did not support the proposed legislation, so the decision of the task force might not have been unanimous.

The Hon. John Hatzistergos: The majority supported it.

Reverend the Hon. FRED NILE: Yes, it received majority support. Modernisation of the law relating to consent is aimed at bringing about both a cultural shift in the response to victims of sexual assault by the community and by key participants within the criminal justice system. For those reasons, reform of the law of consent is supported by a study released in August 2007 by the Australian Institute of Criminology. The results of that study show that juror judgments in rape trials are influenced more by the attitudes, beliefs and biases about rape that jurors bring with them into the courtroom than by the objective facts presented, and that stereotypical beliefs about rape and its victims still exist within community. The report found that some members of the community still hold the view that women often say "no" when they mean "yes", that women who are raped often ask for it, and that rape results from men not being able to control their need for sex and responsibility for rape is therefore removed.

I have raised this issue on a number of occasions when debating laws concerning pornography. There is a strong message in pornographic publications in particular, those to which I refer as rape manuals or some of the X-rated and R-rated films and videos that depict women who are saying "no" as meaning "yes". Men who viewed those videos and films could argue that their actions were based on what they saw, which is not true. That form of propaganda or bad educational material could mislead young men. I have always opposed that type of pornography, which I refer to as rape manuals rather than pornographic publications, as I believe it encourages men to rape women.

We have been advised that currently there is no statutory definition of "consent" in New South Wales. A number of Australian and overseas jurisdictions have adopted a statutory definition of "consent". This amendment will serve a dual purpose. First, the definition will clearly articulate what does and does not amount to consent. Second, it will have an educative function for both the community and jurors and it will ensure that standard directions are given to juries. Lack of consent ultimately is a matter of fact to be determined by a jury. However, it is essential that the courts give clear and consistent guidance as to what it means. This important legislation is needed.

The statistics summary supplied to me by the New South Wales Rape Crisis Centre provides alarming information concerning the increase in the number of rapes being reported to the Rape Crisis Centre. Those statistics reveal a dramatic increase in just one year. From 1 July 2005 to 30 June 2006 there were a total of 3,610 callers, and from 1 July 2006 to 30 June 2007 that figure jumped to a total of 6,695 callers. We know that only a small percentage of those people, of which the majority of course are women, actually proceed with the report. Only a small percentage of cases reported proceed to prosecution and, again, an even smaller percentage result in a conviction.

It is important that the law be as clear as it possibly can on this issue and help to bring about convictions. Convictions will encourage rape victims to come forward. If there is no possibility of success and rape victims even receive advice to not report a rape, obviously in that environment the rapists will be winning. I note also that the Australian Bureau of Crime Statistics and Research estimates that only 20 per cent of women who are sexually assaulted report the crime. In 2005, 9,500 reports of sexual assault were made to the New South Wales police, but there were less than 450 convictions. That is out of 9,500 reports! Obviously, our priority is to reduce the number of rape attacks. If those numbers cannot be reduced, certainly there should be successful prosecutions and convictions.

I have read some material in the Daily Telegraph under the headline "Rape victims praise law reform" concerning some young women involved in recent cases. One was Ms Wagner. Ms Wagner was very critical of the way lawyers representing defendants were attacking rape victims. It seems the old adage "all's fair in love and war" rings true in that defence lawyers use any means they can during cross-examination of victims. In the article Ms Wagner said, "They are the ones during cross-examination who make us feel really bad about ourselves. They are in a sense raping us all over again, mentally, in the witness box." This young lady was only 14 years of age when she was pack-raped by three Pakistani brothers whom she had only just met. At their subsequent trial three years later she went through three days of giving evidence in the witness box and faced 1,971 questions by defence counsel alone. She said that the process was traumatic and defence counsel tried to paint her as a promiscuous skank. The article further reported her comments:

No one was stepping init was horrific If they had that training back then—

she was saying that lawyers needed training—

—I wouldn't have been badgered so much on the stand.

Hopefully, this legislation might assist these young women to not go through such a traumatic experience. Another victim referred to in the same article, Sarah, who spent three days in the witness box, said she was more than willing to speak to barristers about her experience. She said:

I would love to. My goal is to change the whole system so the court understands you better.

The article said that Sarah, aged 46, had to be carried, hysterical, from the witness stand after giving evidence that her de facto had locked her in her home and had raped her for eight hours. She said:

[The] lawyer kept asking me if I had smiled since I was raped, as if that has to do with anything.

More balance is needed in the court to ensure that women who go through the process are not in turn made to feel again like victims or that they are being "raped" again in the court. Another victim, known as Miss C, has been reported in the media. An article from lawyersweekly.com.au states:

Miss C, was 18 when she was raped 25 times by a group of 14 men led by Bilal Skaf back in August 2000. Five harrowing years beginning in 2002 were then spent giving evidence against her attackers, during which Miss C was routinely subjected to humiliating and intimidating defence counsel tactics. During the trial of one of the accused, defence counsel alleged she had been "moaning in pleasure" rather than screaming out for help. Then prosecutor Mary Cuneen—

whom I commend for her diligence in carrying out her professional role—

The Hon. John Hatzistergos: It is Margaret Cuneen.

Reverend the Hon. FRED NILE: Yes, Margaret Cuneen. However, this report says "Mary Cuneen". The article continued:

was barred from the same man's retrial in March this year due to perceived bias—a decision that drew public criticism and saw the victim withdraw from the case saying that she couldn't take it anymore.

That victim was able to empathise with Margaret Cuneen as the prosecutor, who, in turn, was able to support that victim. However, when Margaret Cuneen was pushed aside the victim felt isolated. The article continued:

The new prosecutor had just one week to prepare, and the alleged perpetrator was acquitted [a month later]. It was a charge for which the judge at his first trial said the evidence was "overwhelming."

When I initially reported (these crimes) I did it under the mistaken belief that when such things happened, people that did bad things were put into jail," Miss C said after withdrawing from the case.

We understand the anxiety of that young lady after going through the original cross-examination then having to face it again without the support of that sympathetic prosecutor. Two amendments have been proposed to the bill, both of which deal with the same principle that the legislation should be reviewed. The Government amendment proposes a review by the Minister. The Opposition-Liberal Party amendment proposes that the legislation should be referred to the Law Reform Commission. Obviously, I support a review: whether that review is by the Minister or the Law Reform Commission can be debated in the Committee stage.

I ask the Attorney General to give an assurance that his amendment proposes a review after a period of four years. He has explained that that would be required to enable sufficient number of cases for an evaluation to be made. If the bill is passed by the Parliament and in the period prior to the end of the four-year period it is shown not to be working in the way the Attorney General intended—or the way the Parliament intended—he then would move to make whatever adjustments to the legislation are required. I would appreciate if in his response he could put that on the record. I support the bill. I believe it should be given a fair trial in this State.