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Global law of sexual assault: How judging consent fails
In October of 2017, the #MeToo movement became a reckoning. Powerful men began to fall as victims felt empowered to speak up – but the justice system has remained as harsh and unforgiving as it has always been.
Naomi Neilson
There have been some small wins, but even greater losses, in the war against sexual assault over recent years – specifically, how it is judged before the courts. In 2020, the world will watch as once-powerful men like Harvey Weinstein and George Pell are told to take the stand and hope that, despite history, the law on assault has caught up.
The laws around sexual assault and harassment change depending where in the world the case is taking place, but the definitions of rape and consent should not. Where the justice system fails is in upholding a clear definition to these terms – and then allowing one judge or one jury to perceive the definition how they think is best.
It is here that completely identical cases can quite suddenly have different outcomes; and why it is nearly impossible to predict the fates of Mr Weinstein and Cardinal Pell.
The very real ramifications of varying perceptions of consent
Recently, a woman approached the family courts in England to allege she was a victim of domestic violence and had been raped. The judge ruled that because she had failed to take any “physical steps” to prevent the assault, the attack was consensual.
But what grounds did the judge have to define rape as whether or not the victim fights back? If we’re not fighting, we’re not hurting? It’s easier to assume the victim may have received a different outcome had the case been presided over by a different judge.
This is clear in one of Australia’s major sexual assault cases. In 2013, Saxon Mullins was found by the NSW District Court to have been raped by Luke Lazarus at a Kings Cross nightclub. In the first trial, the judge and jury ruled there was no “reasonable grounds” for the abuser to assume Ms Mullins had consented to the attack, and he was – rightly – sentenced.
But in an appeal, these grounds were somehow found. The judge-only decision ruled Ms Mullins did not do anything “physical to prevent the sexual intercourse”. Ms Mullins was not consenting but because Mr Lazarus thought she was, the judge ruled it okay.
In her ruling, Judge Robyn Tupman agreed Ms Mullins did not consent but it was barely enough: “I stress that I do not accept that the complainant, by her actions, herself had meant to consent to sexual intercourse and in her own mind was not consenting to the sexual intercourse. Whether or not she consented is but one matter.
“Whether or not the accused knew that she was not consenting is another,” she said.
Justice system always the villain, never the hero in stories of sexual assault
The most recent literature on the subject comes in the form of brutally honest memoirs from women who were raped and then subjected to a justice system designed against them. We learn to applaud these women, who have braved the justice system with no guarantee that their case would even be heard, let alone won.
In Chanel Miller’s “Know My Name”, she gave a merciless review of the justice system in the US that saw years wasted to hear her abuser was convicted – but not quite.
Despite prosecutors asking for a six-year prison term – and despite the Californian law allowing for sentences up to 14 years – Supreme Court Judge Aaron Persky gave Brock Turner a six-month sentence, plus three years’ probation. He said it had to do with the potential Mr Turner’s swimming career showed and hopes for his future.
On his verdict, Ms Miller said: “The judge had given Brock something that would never be extended to me: empathy. My pain was never more valuable than his potential”.
Australian author Bri Lee touched on the same lack of empathy in the system we have here. She explained how many women approach courts with their stories, only to then be turned away, and how these stories of rejection make it next to impossible for other victims to want to come forward with their allegations of sexual assault.
Where the law cannot reach, and powerful men walk away unscathed
Consent is hard to judge, but it’s made harder still when men of power are at the centre of it all. Ms Lee wrote that she was waiting for the decision on her case just as Donald Trump, who is notorious for allegations, waited to see if he had won the presidency.
In her book, she wrote about the similarities: “The same attitudes [in the justice system] that just got Trump elected to the highest office in America are the same attitudes that made Samuel think he could go around molesting girls and get away with it.”
Even recently, President Trump has used his position of power to avoid the issues of consent before the courts. He won a reprieve from a lawsuit responding to the sexual assault allegations currently under review following efforts from his lawyers to have it either delayed or thrown out completely through his presidency.
In a statement, his lawyers said: “We believe that the Court of Appeals will agree that the US constitution bars state court actions while the president is in office”.
There’s no presidential status protecting Mr Weinstein the same way President Trump is avoiding the verdict. All eyes are watching as his New York trial begins. He has been charged with raping one woman and sexually assaulting another in 2013 and faces a felony count on forcible rape, forcible oral copulation, sexual penetration by the use of force and sexual battery by restraint. A hefty list of crimes he has paid off before.
The issues of consent may not even make it before a judge if there is money involved. Which has been the case for Mr Weinstein, and countless others, in the past. It is yet another way the justice system fails to hold abusers to account for their crimes.
Equality Now points this out in a 2017 report, which examined the global issues in law. Among the seven gaps in protecting women and girls from sexual assault – including laws framed in morality rather than bodily integrity and laws that fail to recognise true consent is impossible in some situations of dependency – is the failure of the system to protect potential future victims under laws that allow settlements.
The laws missing consent, and the laws skipping over hearsay
Similarly using his money to his advantage – having hired some of the best defence in Australia – is Cardinal Pell. Different to the above cases, however, is that his case has not a lot to do with consent (after all, no 13-year-old boy can legally consent), but more hearsay and the gaps in laws allowing for “burdensome evidence”.
Despite receiving a ruling against him twice, Cardinal Pell is hoping his last chance at an appeal will save him. Whatever the decision of the High Court is will be final and will be applicable to all other Australian courts. Each justice will make their own decisions on the appeal – there is no jury this time, just three people and a majority vote.
In new documents, his lawyers argued Cardinal Pell was unable to offend based on a series of physical evidence provided to the courts, as well as a lack of testimony from another convicted priest. This reliability on onerous evidence was identified in Equality Now’s report as another law failing sexual assault cases in the justice system.
The report noted there is a failure in global laws which allow for witness corroboration with other overly burdensome evidence, such as the heavy robes or the priest. There is then also a gap in laws which fail to recognise the dependency of some victims; the children who do not have the power to seek assistance for the abuse until much later.
For now, these laws and these processes and these wildly different perceptions about the laws of consent are all victims know. So as 2020 prepares for the verdicts of Cardinal Pell and Mr Weinstein, it’s with the hope definitions will finally set.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
