He said, she said
Stuff’s #MeToo editor Alison Mau investigates how an ‘‘affirmative’’ model of consent could change the legal landscape, and how it might have made a difference for one woman who fought for years for her case to get to court. Tackling our consent laws
When police caught up with the man who raped Jazmine Bell, he did not seem rattled. It was as though he believed he’d done nothing wrong.
Thanks to multiple traumas throughout her early life, Bell had her mental health struggles, including acute post-traumatic stress disorder and dissociative identity disorder – a condition once known as ‘‘multiple personalities’’.
But she was getting on with life; working hard with counselling, building a life and a career. When Bell talks about her work in the music and events industry, she lights up – a brief flare of happiness in the midst of a pretty grim tale.
She and a colleague had fallen into a casual relationship; sex but no strings. Until Bell decided it was over.
On the day, she texted him wanting to talk to him about returning to a professional relationship. But as she waited, she grew anxious, and began to ‘‘cascade’’ – the medical term for a regression to a much younger personality.
‘‘And then I ended up in the bed just like a child does, like a child thinks – I’ll go to bed and everything will be OK.’’
When her colleague arrived minutes later there was no answer to his knock. Through the bedroom window, he saw her curled up and threw a bolt at her to see if she was awake.
Bell did not move or speak. He broke in through her bedroom window, and raped her in her bed.
‘‘He said nothing through the whole experience. Right from unscrewing the bolt and throwing it at my head, he said nothing.
‘‘And that to this day makes my skin crawl.’’
When it was over, the man began riffling through her CDs. Later, this would become a bizarre but important point in the police investigation, as Bell tried to get Wellington detectives to take action. ‘‘I would never loan my CDs to anyone,’’ she told them.
She remembers police were sympathetic at first, talking about an arrest. But a detective assigned to the case soon set her straight.
‘‘He kept on saying I know you didn’t consent – that’s all the way through the transcript [of the interview],’’ she says.
‘‘But he said, where the law sits, it was down to whether [he] believed I consented or not.
‘‘[The detective] kept on coming back to the fact that I had been having a sexual relationship with this man before.’’
Jazmine’s long-time psychologist, Amberley Meredith, scoffs when she hears this repeated 15 years later.
‘‘Catatonia [is] like someone who’s just been in a car crash.
‘‘You’re not going to sit there with someone who’s just been in a major car crash and say, ‘Do you feel able to consent to decisions about your life and your body at this moment?’
‘‘There’s absolutely no logic to that.’’
The detective insisted they couldn’t take the case to court while the man said he thought she had consented. The defence would pick holes in your story, they told her.
Bell fought to have the case reopened but, after years of pushing, she was told all the evidence had been destroyed at the Wellington area ESR (forensics testing centre), when it had run out of storage room.
When she complained, she was given $200 for the sheets that had been taken from her bed for testing.
What the law says
The question of consent would no doubt have been central to Jazmine Bell’s case, had it got as far as court. She said she couldn’t possibly have consented; he said he thought she had.
He couldn’t show any proof of that consent, but the law does not ask the accused to prove it.
Instead, it asks whether they had a ‘‘reasonable’’ belief of consent. The Crimes Act does require the accused to have ‘‘taken steps’’ to ascertain consent, but in Bell’s case no judge or jury was given the opportunity to test that.
Even when a case does get to trial, the way the legislation currently interprets consent causes major difficulties, says Victoria University criminologist Dr Samantha Keene.
‘‘At the moment we have a weird situation whereby the consent law actively states conditions by which consent can’t be granted.
‘‘But we don’t have a definition of what does constitute consensual sex.’’
Overseas, the UK and other European countries have consent definitions, and Canada has an ‘‘affirmative’’ model, where there is legal consent only if you are saying or doing something to show clearly that you agree to the sexual activity.
Here in New Zealand, similar change has been resisted. The last time New Zealand amended its consent laws, in 2004, it was more of a tinkering than an overhaul, intended to address the rise of ‘‘date-rape’’ druggings.
At the time, the following clauses were added to the Crimes Act 1961:
■ 128A(3) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious, and
■ 128A(4) A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
The law and order select committee was asked to consider adding a ‘‘positive’’ definition of consent, but declined because ‘‘changing this difficult and elusive concept can only add to further complexity to an already difficult concept’’.
Fifteen years later, the law still has no positive definition of
‘‘At the moment we have a weird situation whereby the consent law actively states conditions by which consent can’t be granted.’’
Samantha Keene
‘‘There is [still] a belief that no means yes. She said no but she was still wearing no bra. She said no but still invited him to the bedroom.’’
Elisabeth McDonald
what consent is. Instead, it talks at length about the ‘‘absence’’ of consent and how that has to be proved, to get a conviction.
The list of how a person can’t reasonably consent to sex includes:
■ if they were forced or threatened;
■ if they are physically, intellectually or mentally impaired to the point that they can’t refuse;
■ if they say yes because they are mistaken about who the other person is, or about the ‘‘nature and quality’’ of the sex;
■ if they are asleep or unconscious;
■ or if they are so drunk or affected by drugs that they can’t consent or refuse to consent.
It’s a long list, but the act specifically states it’s by no means an exhaustive one, and much of its application will be guided by case law.
Keene argues the current legislation considers the issue from the wrong angle entirely.
‘‘We seem to be OK talking about the negative aspects of consent, but not with a conversation about affirmative expressions of consent.
‘‘Without having a clear idea of what it is, rather than what it’s not, I think we’re in drastic need of an overhaul.’’
The Saxon Mullins effect
In Australia, the public outcry over one of the most notorious rape cases in a generation has prompted a re-examination of consent laws.
On her first night out in Sydney, teenager Saxon Mullins was led to an alleyway behind a nightclub by the club-owner’s son, Luke Lazarus. Mullins, who had been drinking heavily with friends, says he swore at her, told her to get on her hands and knees, and raped her. Through two separate trials and two appeals over the course of three years, Lazarus maintained the sex was consensual.
Mullins says she had told Lazarus no, but then ‘‘went on auto-pilot’’ and froze completely.
At trial, he pleaded not guilty, but was convicted and jailed for a minimum of three years.
An appeal overturned the verdict and a retrial was ordered. He was acquitted by Judge Robyn Tubman, who ruled that Mullins had not taken any ‘‘physical action’’ to move away from Lazarus in the alleyway, therefore he had a reasonable belief that she had consented. There was another appeal, which ruled Judge Tubman had made a mistake.
This intricate legal tangle ended with Lazarus keeping his freedom; the final judge finding yet another trial would be too unfair to a man who had already spent 11 months in jail.
But the case led to the New South Wales attorney-general, in May 2018, ordering the state’s Law Reform Commission to review consent laws and suggest whether change was needed.
Seventeen months and more than 100 official submissions later, the commission released its draft proposals in October.
Would it change things here?
Some of the commission’s suggestions are ones we already have here; notably, that a person does not consent only because there was no verbal (or physical) resistance.
But it also proposed explicitly clarifying the meaning of consent, and says ‘‘sexual activity should involve ongoing and mutual communication, decision-making, and free and voluntary agreement’’.
That would come closer to the Canadian model.
But it would not be a gamechanger across the board, says Canterbury University law professor Elisabeth McDonald. The Crown would still have to prove the accused had no reasonable grounds to believe consent was present.
She describes a case where a woman was drunk and had no memory of the sex, but said she would not have consented.
The defence called a doctor as a witness, who testified that, even at the level of intoxication the woman described, she could have given consent.
‘‘And that’s the end of the case, because the Crown has to prove [it],’’ McDonald says. ‘‘You can understand why the Crown and police are reluctant to push that kind of case because the chance of a conviction is so slim.
‘‘That’s concerning because ‘she came on to me, she just doesn’t remember’ is an easy thing to say.’’
McDonald is soon to release a book examining how rape myth impacts the fair trial process. She’s examined 40 cases, 26 of which included evidence the woman said ‘‘no’’ or pushed the man away. ‘‘Of those cases, only 50 per cent resulted in a conviction.
‘‘There is [still] a belief that no means yes. She said no but she was still wearing no bra. She said no but still invited him to the bedroom.
‘‘Changing the definition from the negative to the affirmative wouldn’t help in those cases, because [the woman] already said no.’’
The NSW proposals sparked vigorous pushback, including from lawyers groups who say it will simply make things harder for everyone.
The state’s Criminal Bar Association said in October the changes were ‘‘impractical’’ as they would ask juries to analyse ‘‘every detail of what happened between the parties and whether or not there was affirmative consent’’.
Another submission suggested this might make for a rougher time for complainants, who risked having their sexual choices and practices ever more thoroughly picked over.
That’s something Green MP Jan Logie, who is leading legislative reform for sexual and domestic violence here, would be unhappy to see.
She says further changes to consent law are ‘‘on the table’’, and she ‘‘100 per cent’’ agrees there must be work on tightening definitions of howdrunk-is-too-drunk.