An app is not the answer, but consent is the question
25 Mar 2021|

NSW Police Commissioner Mick Fuller’s suggestion of a sexual consent app has been comprehensively shot down. The only effective use it could have, if admissible in court, would be for an accused rapist to ‘prove’ consent while ignoring the fact that consent must be an uncoerced and ongoing agreement that cannot be proved simply by a person’s finger hitting a button.

We know there’s a crisis in sexual assault and gender-based violence in Australia.

The burden of solving this crisis cannot reside with police alone; they’re primarily responsible for addressing the effects, not the causes.

Sexual violence is a major health and welfare problem fuelled by a complex range of cultural, political and historical factors and it requires a cross-portfolio response. The Victorian government’s introduction of mandatory education on gender, sex and respectful relationships for the state’s primary and secondary schools as part of preventive measures is a great step in this direction. This ‘Respectful Relationships’ program should be made mandatory in all states and territories across all years of primary and secondary schooling, backed by whole-of-school approaches to updating policies and changing cultures.

The men’s behavioural change counselling groups run through the No to Violence association in Victoria are another example of how this issue must be addressed across multiple sectors and life stages. Enrolment in the program often comes through legal mandates as part of family violence court cases.

As for mitigating the crisis itself, an app is not the answer but Fuller is asking the right question. Given that consent is so hard to prove beyond reasonable doubt, what can be done to enable victims to report rape and increase just prosecution outcomes? And how can we reduce the significant retraumatising effects of pursuing legal action—or at least make it worthwhile by improving the chances of just prosecution outcomes?

Proving consent beyond reasonable doubt is incredibly difficult because most instances of rape occur without witnesses who aren’t themselves implicated. It’s also important that sexual assault prosecutions prove the crime to an equally high legal standard as all other crimes. There’s no magic bridge to build between these two mandates. But there are policy and legislative changes that can help law enforcement immediately increase the chance that victims will get justice.

The definition of consent should be standardised across all Australian jurisdictions. There are currently differences in the way consent is defined; in the conditions or circumstances seen as negating consent; in the way a defendant’s ‘honest belief’ in consent is dealt with; and in the use of judicial directions as a way to inform and educate juries about what amounts to consent.

Queensland should join all other jurisdictions in amending legislation to address instances of intercourse continuing after consent has been withdrawn, and all jurisdictions should account for victims’ agency and capacity by following Victoria’s lead in adopting an ‘affirmative consent standard’ that requires ‘active communication by all parties to a sexual act’.

The burden of proof in sexual assault cases should be amended from ‘beyond reasonable doubt’ to an appropriate—that is to say, achievable—degree of proof given the nature of the crime.

To successfully prosecute a sexual assault case in New South Wales, it must be proved beyond reasonable doubt that intercourse occurred between the perpetrator and victim, that the victim did not consent, and that the perpetrator knew the victim did not consent. Proving these three factors is unachievable for most victims because of the nature of the crime and a lack of witnesses or genetic, audio or video evidence.

Recent data from the Australian Institute of Health and Welfare reveals that 80% of hospitalised sexual assault cases were perpetrated by a person who is known to and likely trusted by the victim. That means the majority of cases occur in places and situations where consent is harder to prove because the victim is commonly in that place or situation, possibly with or having invited that person.

Proof ‘beyond reasonable doubt’ is unachievable in most cases without at least genetic evidence to prove intercourse occurred and, depending on injuries observed while evidence is collected, to prove consent was not given. For example, it’s impractical and unrealistic to expect that victims will present to police or a hospital within 72 hours to have a forensic examination kit test administered given the common short- and medium-term effects of an assault.

A lack of access to forensic examination kits compounds the problem. There’s a shortage of doctors trained to collect evidence across rural Australia, meaning victims may have to travel long distances to have evidence collected immediately after an assault. In most cases that’s unlikely and in many it’s not logistically possible. Health departments in all states and territories should listen to industry advocates and increase the availability of kits and training for practitioners in regional and rural areas.

Given the reliance on genetic evidence in rape cases and the low rates of cases being reported in time to collect evidence, one would assume the kits that are collected are tested comprehensively so that the data can be stored for use in assessing future allegations and identifying potential serial rapists. However, many kits are never tested. All states and territories should adopt a policy of testing every kit and storing all the information indefinitely, just as rape allegations are recorded in police reports and held indefinitely even when the victim decides not to proceed.

There should be national standardisation of key elements of policing policy in response to sexual assault. New South Wales is the only state that doesn’t record why sexual assault investigations don’t lead to legal action, and it needs to start doing so. This is information is crucial to mapping trends in victims reporting and withdrawing reports, police pressing charges and successful prosecutions.

Data from 2008–2017 for the rest of Australia gave a detailed picture of police handling of reported sexual assaults, which showed significant increases in reports rejected by police or withdrawn by victims, and significant declines in rates of arrest. Understanding when and why victims’ efforts to identify and prosecute perpetrators are blocked can help better train and support police to enable and help victims to prove and prosecute sexual assault cases.

It makes no sense for the criminal justice system to have a serious ‘strictly indictable’ offence that is so hard to report and prove unless the victim behaves in a way that most don’t and can’t in the offence’s immediate aftermath. An estimated 89% of sexual assaults are not reported and guilty verdicts are handed down in only 2% of total estimated incidents.

The high-profile rape allegations rocking Australia and the wave of victims speaking publicly about their similar experiences is a pressing demonstration of the need to provide victims with the support they need to report allegations to police as soon as possible.

Legislation, policing and health policies must be standardised and amended to enable more victims to  report to police and to enable police to successfully prosecute those responsible while maintaining the legal rigour of prosecutions and the presumption of innocence of defendants.