THE ‘IN-BETWEEN’ OF SEXUAL ASSAULT: THE SPACE THAT THE LAW FAILS TO RECOGNISE
BY NECHAMA BASSERABIE
One only had to watch Saxon Mullins speak on Four Corners to understand that Western society is being forced, with renewed urgency, to reckon with our understanding of sexual assault and the laws that govern it.
Historically we have thought of sex in terms of a false dichotomy: either it reaches the criminal standard, and is classified as sexual assault, or it doesn’t. Saxon Mullins’ case demonstrates that there is really no avenue of recourse for the space in-between.
In the wake of Mullins’ brave decision to speak out, the court of public opinion is holding the criminal law on trial for sanctioning this binary view of sex. Judge Tupman’s verdict in the Luke Lazarus retrial, in which she found Lazarus not guilty of sexual assault, supports this black-and-white conception. It’s evident that the law has a way to go in addressing the complexity and ambiguity of sexual assault. In the meantime, society can engage in activities and discussions that prevent assault from occurring in the first place.
This conversation needs to address the grey, amorphous area that the rigid binaries of the law fail to recognise. While consent may sometimes be a matter of a straightforward ‘yes’ or ‘no’, it often doesn’t unfold that way. It might be a subtle application of pressure. It might be a pulling down of one’s underwear, as happened to Saxon Mullins.
If a person resists and resists and resists and then finally acquiesces, does that amount to consent? If their final acquiescence means the other person could not reasonably have formed a belief that they were not consenting, and therefore is not guilty of sexual assault, does that make the encounter morally acceptable?
There are some actions that should be illegal regardless of intent. There are others that, based on intent as a basis for culpability, should not. There are still some actions for which a person should be held morally responsible, and it is within this grey area that the Luke Lazarus case provides important instruction. In the #metoo era, it is true that society has begun to grapple more readily with the question of consent and sexual assault, but we could do better.
What about formal education programs across a greater number of high schools, like the one introduced in Tasmania by the Sexual Assault Support Service and embraced enthusiastically by local schools? What about platforms that discuss consent in the public arena more frequently, as Four Corners did? What about greater inquiry into the reasons why sexual assault often goes unreported in the first place?
We also need to look at the kind of conditions that create a culture of non-reporting. The 2016 Australian Bureau of Statistics Personal Safety Survey found that only 13% of female victims of sexual assault by a male perpetrator (comprising the majority of sexual assault cases) reported the most recent incident of assault to police. It may have to do in large part with the fact that, as the same survey shows, in the majority of reported sexual assault cases the perpetrator is known to the victim – likely a partner or relative. It’s hard to imagine an acquaintance of Lazarus reporting him and risking becoming a community pariah had it been her in the alleyway that night. So whilst Mullins’ bravery in speaking out should be applauded, one can equally understand how hard it would be for other victims of sexual assault to do the same.
It is also our responsibility to continue picking at the question of consent. Mullins raised the idea of enthusiastic consent, a pretty compelling one, considering that Judge Tupman used the fact that Mullins was “moving back and forward” during intercourse and “did not stay ‘stop’” as support for the conclusion that Lazarus could not reasonably have known she was not consenting. A requirement of positive consent could bridge the gap between the ‘display of enthusiasm’ that Judge Tupman used to infer Lazarus’ state of mind and the absence of consent in Mullins’ own mind.
Sexual assault is like a wrecking ball. It swings through the life of a real person. Saxon Mullins lives with anxiety and is scared of walking down unlit streets at night. While the law deliberates on where fault should lie or whether it should lie at all, a person suffers from an encounter that could have been prevented by adequate education and a higher standard of moral accountability.
The law may have decided that Saxon Mullins is not a victim of rape. One can hardly imagine what hearing that verdict would have been like for her. But Saxon is also a victim of other things: of a system that failed to educate and demonstrate to a boy what consent looks like, or of a boy who knew but decided not to care. She is the victim of a system in which a person is either guilty or not, with no space for recognition of what might exist in between.
You can watch Saxon Mullins’ interview on Four Corners here: https://iview.abc.net.au/programs/four-corners/NC1803H013S00
 Fantin, E. (2017) Consent and sexual assault prevention program being rolled out in Tasmanian schools [online]. ABC News. Available from: http://www.abc.net.au/news/2017-12-17/consent-and-sexual-assault-prevention-program-in-schools/9266634
 Australian Bureau of Statistics (2017) 4906.0 – Personal Safety, Australia, 2016 – Key Findings [online]. Available from: http://www.abs.gov.au/ausstats/abs@.nsf/mf/4906.0
Stephan House’s family’s GoFundMe: https://www.gofundme.com/tx-bomb-leaves-8yr-old-daughter-wo
Draylen Mason’s family’s YouCaring: https://www.youcaring.com/joneswilsonfamily-1129040