The trial of Harvey Weinstein in the US reignited a debate, long predating the #MeToo movement, about sexual assault. Particular attention has recently been focused on the answer given by Weinstein's lawyer, Donna Rotunno, when questioned as to whether she herself had ever been the subject of sexual harassment or sexual assault.
Rotunno's answer was to the effect she had not suffered this because she had, through her adult life, been at pains never to drink too much; never to go home with someone she didn't know and, in brief, never to put herself in any situation where she was vulnerable.
While a response of this kind might have been to some extent expected from a lawyer acting for Weinstein, the criticism was that this kind of assertion worsened the problem, by implying that it is the duty of women to take precautions to avoid being sexually assaulted by men, rather than the duty of men to refrain from sexually assaulting women. (While there are rare cases where a woman is the perpetrator and a man the victim, and same-sex sexual violence; the language used here will assume that the perpetrator is always male, and the victim always female.)
Personal safety vs the right not to be assaulted
The public debate however seems to have an inherently self-contradictory quality. Commentators who defend, in the strongest terms, the rights of women who dress and behave in sexually provocative ways to do so without being sexually assaulted, are in all likelihood people who would strongly counsel young female family members not to go out, scantily clad, partying with men they don't know, where drugs or alcohol are freely available.
The reason is presumably simple: statistically, assaults occur in such situations, no matter what the law may say. So the expression of views about what should happen within the populace at large is overridden when the protection of family from obvious danger is at issue.
A warning not to go swimming at dusk in murky and warm beach waters, because of the risk of shark attack, would not raise an eyebrow; just as probably would a warning to someone not to walk, expensively dressed, through a crime-ridden area, despite the fact that mugging is against the law.
However a suggestion, made many years ago by a NSW Commissioner for Motor Transport, that people should try to avoid driving between late Saturday night and early Sunday morning because that was when there were numbers of alcohol-affected drivers on the road, predictably drew a shower of condemnation.
And suggestions that women should avoid sexual assault by refraining from doing all manner of things which might arouse the supposedly uncontrollable passions of men are, rightly, denounced. However we do not see this sort of debate around the crimes of theft and murder. Why?
Consent and crimes of assault
To understand why, it is necessary first to understand how the consent of the victim relates to assaults generally.
A fundamental precept of the common law is that consent is no answer to a charge of assault. It is not a defence to, say, a charge of committing grievous bodily harm, to argue that the victim in some way or another consented to the assault.
The conduct of the victim of an assault may in some cases mitigate the penalty imposed, but cannot affect conviction itself. A survivor of a failed suicide pact who had caused the death of the deceased party may be shown leniency by a court because of tragic and compelling circumstances, but will nonetheless be convicted of the crime of murder.
If the consent of the victim were a defence to a charge of murder, there would be no euthanasia debate, or any need for so-called assisted dying legislation.
The principle that consent is no defence to an assault charge is true of assaults whether or not they cause death. Apart from self-defence (which if proved can secure acquittal), proving provocation by the victim may reduce the penalty, but will not save the accused from conviction of the offence. (A partial exception is that, where provocation by the victim is proved, a charge of murder may be reduced to manslaughter, but certainly not to full acquittal.)
There are of course exceptions. A footballer playing in a competition who injures another in a tackle within the rules will not be charged with assault, although this could be argued to be more because the harm was inadvertent rather than deliberate, as is the case with most motor vehicle-related injuries. Stabbing someone would ordinarily attract an assault charge, but if the knife is a scalpel wielded by a surgeon with the consent of the patient, there is no assault. However these exceptions are limited.
There is however one huge exception, which pervades the whole of the debate, and that relates to sexual assault.
Consent and sexual assault
In relation to sexual assault, there is a fundamental departure from these general rules about assault and consent. An act of sexual intercourse between two parties each of whom has fully, freely and clearly given consent to the other, is not merely no crime, but perhaps even a wonderful thing.
Without that consent, however, it is a crime of extreme gravity, even in the absence of any actual physical injury, as for example where a woman's submission to the act is procured, not by force applied to her, but by a threat to harm her child.
The seriousness of the offence is shown by the handing down, some few years ago, of a sentence of 55 years' imprisonment to the leader of a gang of serial rapists; although no appreciable physical injury had been inflicted on the victims, who submitted out of fear of physical harm. Doubtless, of course, serious psychological harm was inflicted.
Conviction or acquittal in sexual assault cases turns on question of consent
The point is however that in sexual assaults the issue of consent, of relevance in all other assaults only to the extent that it might affect penalty, assumes centre-stage importance, because on it turns the difference, not simply in severity of penalty, but between conviction and complete acquittal.
A man accused of sexual assault, if able to convince a jury that his accuser genuinely consented, will be acquitted, even if the sexual activity was of the rather bizarre nature said to have been involved in Weinstein's case.
From this flows, for lawyers defending a man charged with sexual assault where the sexual activity is admitted, the imperative of proving consent. And this leads to the widely-decried focus on the conduct of the woman, which appears to put the onus on her, rather than on the accused man.
Was she dressed revealingly? Was she behaving flirtatiously? Was she exhibiting any other behaviour which might have given rise to a reasonable and genuine belief, on the part of the accused, that she was consenting to sex?
Decision in sexual assault case leads to calls for change in law
Quite recently, a young man was acquitted, after two trials, of a charge of sexual assault of a young woman. Previously unknown to each other, they had met in a nightclub in Sydney's eastern suburbs.
At the man's invitation, the woman had accompanied him into an outside alleyway, where he had anal intercourse with her. She denied having consented, but the eventual acquittal appears to have been based on a finding that, having willingly gone outside with him, she had not wanted to engage in intercourse, but had not communicated this sufficiently clearly to the man.
This decision was understandably attacked as having reversed the onus of proof in relation to consent, leading to calls for legislation of the kind found in Victoria, which provides that a defence of consent cannot succeed unless it is proved that the alleged victim actively communicated consent to the accused man.
Is there a solution to the dilemma?
An honest - if simplistic - answer to the above question is "no". It is unthinkable that the law might criminalise sexual activity to which genuine and mutual consent is given (in the absence of course of factors such as being under the age at which consent can be given, and a relationship which would make the act incestuous).
It is equally unthinkable that the law might dilute, even further, existing protections for women to ensure that sexual activity occurs only with their full and freely given consent.
The law has, over the years, moved slowly in the general direction of protecting victims. Until at least the 1970s, an accused was allowed to bring evidence of promiscuity on the part of the victim, as though a woman who gave consent to a number of partners might be likely to give it to anybody.
Some protections are available at trial to shield a victim from contact with the accused, although relatively recently an unrepresented man accused of sexual assault asserted his right to cross-examine the victim, to her considerable distress.
It is, indeed, a problem to which there would seem to be no complete solution.
Only in the case of sexual assault is consent a defence
The stimulus for the writing of this item was, however, not the balance of rights as between the accused and the victim in cases of sexual assault.
The stimulus was, instead, the recurrent debate about the fact that women are, in so many ways, seemingly placed in a position (as evidenced by the comment from Weinstein's lawyer) of having to take precautions to protect themselves from sexual assault, rather than being able to rely on the legal obligation of men to refrain from sexual contact unless given very clear permission.
Although much is said in public discussions around this issue, there is little, if any, mention of one important underlying factor, namely that, of all the possible kinds of assault, it is only in the case of sexual assault that consent is a defence.
While, as has been said, there is probably no complete solution to the problem, inclusion in the debate of the issue discussed here might at least result in more informed consideration.
Geoff Baldwin
Employment law
Stacks Champion
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