This post mentions sexual assault allegations and might be triggering for some readers.
On Tuesday, Australian actor Craig McLachlan was found not guilty of indecently assaulting four women during a 2014 stage production of The Rocky Horror Picture Show.
McLachlan, best known for his role in television series The Doctor Blake Mysteries, was acquitted of seven indecent assault charges and six common assault charges relating to seven alleged incidents.
Among the accusations levelled against the 55-year-old were: that he put his tongue in the mouth of a co-star during an unscripted kiss and, while backstage, pressed his genitals against her during a hug; that he touched another co-star's genitals during a performance; that he twice kissed a co-star backstage; and that he tickled a co-star's inner thigh while she was performing.
Delivering the judgement, Victorian Magistrate Belinda Wallington praised the accusers as "brave and honest witnesses".
She said while she accepted some of their evidence, she was not persuaded beyond a reasonable doubt that McLachlan knew they were not consenting.
Referring to the thigh-touching incident, she said, "I'm unable to exclude the possibility that an egotistical, self-entitled sense of humour led the accused to genuinely think that … [the co-star] was consenting to his actions."
Magistrate Wallington noted that, while consent laws had changed since, she was required to apply the law as it stood at the time of the alleged offences. And that's when she made an interesting observation:
"Were the current law applicable, it is possible the result may have been different."
So what's changed in the meantime?
How has the law changed?
Since amendments were introduced in on July 1, 2015, Victoria has boasted some of the most rigorous laws in the country around consent.
A sexual assault conviction prior that date (or indecent assault, as it was called then) relied on prosecutors proving, beyond reasonable doubt, that the accused was "aware" that the person was not consenting.
Instead, the current law requires prosecutors to prove, beyond reasonable doubt, that the accused had "no reasonable belief" the person was consenting.
It's an important distinction.
Why? Because one of the ways the prosecution can prove belief in consent was not 'reasonable' in the circumstances is to take into account any steps the accused took to find out if the person consented. That draws attention to the importance of assessing the accused's conduct and not just what the alleged victim said or did.
The current laws also make explicit that a person has not given "free agreement" to sexual touching if they do "not say or do anything to indicate consent to the act".
All this endorses an 'affirmative model' of consent, which holds that consent does not exist unless it has been communicated.
"Times have changed."
Affirmative consent laws, versions of which exist in Victoria and Tasmania, are broadly considered to be a positive step toward preventing "rape myths" from being perpetuated at criminal trials.
These myths tend to excuse men’s predatory behaviour and blame women for being raped or assaulted. One example is the falsity that if a woman didn't say "no" or physically fight back, she consented to the sexual act (in reality, many survivors experience a "freeze response" when attacked, hence the importance of obtaining enthusiastic, ongoing consent).