opinion

Luke Lazarus case highlights the need to change our conversation about sexual consent.

By Kathleen Calderwood

When Luke Lazurus was acquitted of sexual assault this week there were no winners.

While he and his family were finally given a reprieve after four years of fighting rape allegations, a young man’s life will likely be overshadowed by these events for many years to come.

Meanwhile, a young woman was left feeling violated and robbed of her right to justice.

Mr Lazarus was accused of raping the then 18-year-old woman in an alleyway behind his father’s nightclub in Kings Cross in Sydney.

The judge described it as a quick and unromantic encounter, that probably would not have happened without the influence of alcohol.

This was the second time Mr Lazarus had been tried for the offence. The original guilty verdict was overturned at appeal, after it was found the first judge had misdirected the jury.

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So for a second time, Mr Lazarus, the woman and their families, had to relive in extreme detail the awkward, unromantic sex they had together.

In the end, he was acquitted of the sexual assault.

Judge Robyn Tupman said it had been proved beyond reasonable doubt that while the young woman had not in her own mind consented, Mr Lazarus had a “genuine and honest” belief she was consenting.

“These things are really difficult because the prosecution has to prove the case beyond a reasonable doubt that the person accused of the crime actually knew that the woman wasn’t consenting … or that they were reckless,” explained Law Society of New South Wales president Pauline Wright.

“That’s a pretty high test … it’s about proving the person failed to properly consider at all that she was properly consenting or if they realised it was possible they weren’t consenting.

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“There’s no reflection on the woman at all, this is purely about the state of mind of the person accused.

“If [the man] thought there was genuine consent then they didn’t commit a crime.”

Assume nothing when it comes to consent

This assumption of consent is everything that is wrong with the conversation we, as young people, have about sex.

Most young people, both male and female, would have a story of a time they engaged in a sexual act they did not feel entirely comfortable with.

Maybe they did not want to make a fuss, maybe they were inexperienced, felt pressured or did not know what to do.

Maybe they just did not know how to say no.

Even Mr Lazarus said he immediately regretted his encounter with the woman, despite being under the impression it was consensual.

But young men today should be taught that if nothing is said, or if there is no protest, those facts alone are not enough to assume consent.

It should be the opposite, even if that is only to protect themselves from being charged with an offence they did not know they were committing.

“Young men have to take responsibility for making sure their partners are consenting,” Ms Wright said.

Consent is more than yes or no

Judge Tupman explained in her judgement that, in the eyes of the law, consent is not simply verbal — it can be interpreted through a person’s actions.

On the night Mr Lazarus and the woman met in his father’s nightclub, they danced, he asked her if she wanted to go somewhere private and she said yes.

He took her to the alleyway, where he told her to put her hands up against a fence, pulled her underwear and stockings down — she did not pull them back up, and then he told her to get down on all fours and arch her back.

She complied with his requests, so he interpreted that as consent.

“She said she obeyed this request because she was scared and didn’t know what to do,” Justice Tupman said.

“That fear was not as a result of any physical force by the accused.”

Now if you are in a long-term relationship, or even just having sex with someone you know well, you might be able to confidently interpret consent through your partner’s actions.

But if you are a young person having sex or fooling around with someone you barely know, surely that consent should be in the form of an enthusiastic and resounding yes.

In the eyes of the law though, it is not so black and white.

“Every case is going to be judged on its specific facts and circumstances,” Ms Wright said.

“In any intimate act people do judge each other on their own experience of intimate sexual relations.

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“So this person may have genuinely held that belief that the response he was getting from this woman was genuine consent, even though she’s not verbalising it.”

Changing the conversation

Unfortunately, this result may deter other young people from coming forward if they have been sexually assaulted.

Straight after having sex with Mr Lazarus, the young woman met with her friend BW. In court, BW testified that the woman was hysterical and told her what had happened and that she was in pain.

The next day she went to police to report the incident, and was forensically examined in hospital.

She then had to sit through two trials, give evidence, and hear her account of the night be called unreliable.

As I sat watching this young woman silently cry as the man she felt assaulted her was declared not guilty, I had no doubt she felt she had been raped.

No woman goes through that process for fun, and I can only imagine how it adds further to the original violation felt.

But without changing the conversation around consent — that is, teaching young men to assume there is not consent, rather than assuming there is unless stated otherwise — these lose-lose outcomes are bound to keep occurring, both in and out of court.

This post originally appeared on ABC News.


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