In 2017 the NSW District Court,in a judge alone trial,found that Luke Lazarus had a genuine and honest belief that Mullins,then an 18-year-old virgin,was consenting to anal sex even though her evidence was"in her own mind"she was not. The law of consent in NSW is that the prosecution has to prove beyond reasonable doubt that the accused either knows that the other person does not consent intercourse,or the person is reckless as to whether the other person consents,or the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.
It is a very broad test.
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Before politicians and others jump on the bandwagon of calling for reform of consent laws they should read carefully all the evidence in the case and the trial judge’s reasons. This was a case that relied on the careful forensic assessment of the credibility of witnesses,including Mullins. Lazarus'acquittal does not mean that the law concerning consent,which should not be tinkered with lightly given the horrendous consequences for the accused and complainants in getting it wrong,is deficient.
It is worth remembering that while Lazarus was finally acquitted,he spent 11 months in prison after being convicted in a previous trial,which he appealed. In other words there are no winners here.
Today there are calls,including from one minister in the NSW government,to adopt a reform from Tasmania. In that jurisdiction the definition of consent is similar to NSW but adds that “a person does not freely agree to an act if the person ... does not say or do anything to communicate consent.” The difficulty with this provision is that it is nebulous. It raises the question of what is meant by “say or do anything” in every case. Even one of the supporters of the Tasmanian reform Professor Helen Cockburn has acknowledged:“Consent is comprehended in different ways and there is likely to be a similar lack of uniformity in the way that the concept of communicated consent is understood. Signals about consent are thus susceptible to misinterpretation.”