Witnesses appearing before an ACT parliamentary inquiry into proposed changes to sexual consent laws are divided on whether the current legislation equips juries with enough information to determine whether someone is guilty of rape.
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The current legislation doesn't explicitly define consent but includes a list of factors that nullify it, such as threats of violence, intoxication or cases of mistaken identity.
Youth Coalition ACT policy and development officer Kieran Chowdry told the inquiry on Friday the changes were needed to make understanding consent easier for juries.
"Fundamentally what’s missing from the legislation at the moment is an affirmative definition of consent. Right now we have six or seven of eight factors that negate consent and this is especially confusing from a jury’s perspective," Mr Chowdry said.
"If you’re a jury member in a rape trial and you’re asked to understand or come up with a guilty or not guilty verdict based on a negative definition then have to work out from there if consent was given.
"For jury members who are introduced to that concept almost immediately then asked to make a critical, life changing decision for a person it can be quite an enormous task."
But ACT Director of Public Prosecutions Jon White said it was inherent in the meaning of the term that consent was freely and voluntarily given, and juries had taken this common sense approach.
"Consent that is not freely and voluntarily given is not consent," Mr White said.
“We have no difficulty explaining to juries that concept of consent."
Mr White said the Greens will ignored the concept of recklessness, which was the fulcrum around how sexual assault cases were prosecuted.
"With the combination of our common law concept of consent with our [negating] factors, our experience is that’s sufficient to define what consent is," Mr White said.
Mr White cited the Lazarus case that sparked a NSW government review of sexual consent laws as a reason why juries were well placed to mull the issue.
“In that matter the young man involved was found not guilty by a judge alone. The judge got it wrong in that instance , it was fairly clear," Mr White said.
"In the ACT we have a wonderful innovation that all these cases are trialled by juries. Why is that so good? Well issues of consent are really about community standards and so real people can bring their experiences of consent and different situations they’ve been in ... to the table and discuss it.
"Although I’m very proud of being a lawyer, lawyers don't have a full mortgage on common sense nor do they have a full mortgage on experience of life. Those provisions in involving juries in making these decisions are working very well in the ACT."
Mr White said the bill exposed the divide between societal attitudes and how criminal law dealt with cases of sexual assault.
"The debate around positive consent is one that's very important for the community to have. We welcome a model of societal behaviour which really emphasises the necessity of positive consent for sexual relations being obtained," Mr White said.
“We need to be very certain that people we’re prosecuting and are having convicted of sexual assault have transgressed a very clear line. It’s all very well to posit this affirmative position on consent but I think we know in the real world it’s not how human beings interact.
"The criminal law needs to deal with the real world as to how people actually react. That’s what the criminal law does. We look at human behaviour as it actually happens and we draw lines at particular parts and say that type of behaviour is prohibited."
The inquiry continues next week.
