Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697630744773.pdf (Australia)
Simone Watson & Helen Pringle ME TOO?

LEAVING NO WOMAN BEHIND IN ADDRESSING SEXUAL ASSAULT Submission to the Senate Inquiry into current and proposed sexual consent laws in Australia Senate Legal and Constitutional Affairs Committee SIMONE WATSON Ms Simone Watson is an Indigenous sex trade survivor, former human rights delegate for Amnesty International, and the convenor of the Nordic Model Australia Coalition (NorMAC).

Ms Watson is based in Western Australia.


HELEN PRINGLE Dr Helen Pringle is an Associate Professor in the School of Social Sciences at the University of New South Wales, Sydney, with long experience and deep expertise in research and teaching in the areas of human rights and discrimination against women.

She is co-founder and co-convenor of the Nordic Model Information Network, a global alliance of researchers on prostitution and the sex industry, trafficking, and other forms of violence against women.
ACKNOWLEDGEMENT We acknowledge that we live and work on unceded land, and here in particular we acknowledge the wrongs and sorrows of a long history of sexual violence and exploitation of Indigenous women which scars this land but is yet to be fully and truthfully understood as part of the Australian genocide.
22 March 2023 Current and proposed sexual consent laws in AustraliaSubmission 65 2 Introduction We thank the Senate Legal and Constitutional Affairs Committee for the opportunity to make this submission to the Inquiry into current and proposed sexual consent laws in Australia.
With reference to the Inquiry Discussion Paper, our submission chiefly takes up the broad question of the uniformity of sexual assault laws throughout Australia, by noting the principles that should underlie provisions in different states and territories.

The central recommendation of our submission is that the Committee take seriously the necessity of explicitly including prostitution in any consideration of the framework of sexual assault laws in Australia.
This would involve understanding the prostitution system within a human rights framework, as a form of gender inequality, of violence and coercion against women in particular, and of sexual exploitation.

We are of course aware that this recommendation risks going a little beyond the terms of reference of the Committee for this inquiry.
However, this submission takes that risk in a considered manner, on the basis that a more narrowly confined examination of consent as contemplated by the Committee leaves behind those women who are most at risk of systemic sexual assault, and who are most in danger of their wrong and injuries being ignored (and in many cases, even mocked).
We argue that a comprehensive and systematic rethinking of sexual assault legislation in terms of human rights principles, particularly those of dignity and anti-discrimination, must address the question of consent and of coercion in prostitution.

In making this submission, we find much that is worthy of wider implementation in the recent (2022) changes to the NSW Crimes Act 1900,1 in particular the provisions concerning ‘affirmative consent’.
However, we argue for a shift in the legislative framing of these provisions, so as to bring their interpretation into line with an overarching definition of sexual assault as a violation of a sexual nature under circumstances of threat or use of force, fraud, coercion, abduction, or of the abuse of power, trust, or a position of dependency or vulnerability This definition is adapted from a proposal of Catharine MacKinnon, who draws on the language and reasoning of international law on sexual assault developed in the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Criminal Court, as well as on the language of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol).2 We are in broad agreement with principles of mutual affirmative consent in addressing sexual assault, but we would argue that understanding and recognition of free consent should be not only a matter of actions and words (speech acts) between individuals.
We must also acknowledge the ‘background conditions’ within which sexual power and preferences are formed, and in particular the way in which women as a class are marked as vulnerable and at risk, and in which some women are culturally and socially designated with the status of legitimately accessible to male sexual entitlement, that is, women in prostitution.

As noted in the Discussion Paper, the problem of sexual assault has been rapidly gaining national and international prominence.
Along with women in movements including MeToo and LetHerSpeak, sex trade survivors have campaigned with women’s rights campaigners for our voices to be given a central place in legislative contexts and considerations of consent and of sexual assault.
Survivors of prostitution draw attention to the fictive character of the ‘consent’ that is often invoked as underlying prostitution.3 Agreement on payment for sex can not be considered as free consent: it does not displace the coercive context of the prostitution system in which individual transactions take place.

In the case of prostitution, money (or other forms of payment) form the initial and framing 1 Crimes Act 1900 (NSW), https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040.
2 UN General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, https://treaties.un.org/Pages/ViewDetails.aspx?src=ind&mtdsg_no=XVIII-12-a&chapter=18&clang=_en.
3 See for example Mia Döring, Any Girl: A Memoir of Sexual Exploitation and Recovery (2022); Rachel Moran, Paid For: My Journey through Prostitution (2015); Caroline Norma and Melinda Tankard Reist ed., Prostitution Narratives: Stories of Survival in the Sex Trade (2016); Rachel Lloyd, Girls Like Us: Fighting for a World Where Girls are Not for Sale: A Memoir (2012); Rebecca Bender, In Pursuit of Love: One Woman's Journey from Trafficked to Triumphant (2020).
Current and proposed sexual consent laws in AustraliaSubmission 65 3 coercive element.

What is purchased in prostitution transactions is not sex or consent itself, but the temporary suspension of a woman’s desire not to consent – and that is coercion.4 We view the problem of sexual consent achieved by payment, and in particular, payment within the (global) prostitution system, as a ‘blind spot’ in popular and academic discussions of sexual consent.
We argue that a system of payment for sex constructs a framework of coercion and constraint, which vitiates not only particular individual expressions of ‘consent’, but the very conditions of free consent.
This form of systemic coercion is exacerbated by the highly gendered structure of the prostitution system, as a network of asymmetrical relationships between prostituted women, and buyers and pimps: on the one hand, the extreme vulnerability of women, with on the other hand a heightened form of male entitlement to access women’s bodies.

A discussion of sexual consent that does not comprehensively include the prostitution system in its deliberations remains seriously incomplete.
We acknowledge that there is a widespread cultural illusion of the distinctness of sex in prostitution from ‘normal’ sex, which both reflects and reinforces the illusion of the distinctness of women in prostitution from ‘other’ women.

We refuse to embed such a distinction into consideration of the legal or cultural status of sexual assault.
This distinction would mean leaving behind those women most vulnerable to sexual assault, that is, those vulnerable to continual and approved systemic rape in prostitution.

We understand that a change in law cannot singlehandedly or immediately transform entrenched social, cultural and economic practices and institutions.

However, we understand law as not only punitive, but also as permissive (particularly in terms of permitting and approving certain categories of entitlement).
Law is also a form of (sex) education: the words of legislation, the conduct of trials and the words of judges convey ideas about love and justice which powerfully shape our perspectives and values of what is acceptable and reasonable in our intimate lives.5 Throughout this submission, we rely on human rights perspectives and treaties, with a central focus on the dignity of the person and her claims to equal enjoyment of the world and its benefits, as guiding our proposal.
On this basis, our recommendations to the Committee are twofold: 1.

An explicit clarification in all legal statements on sexual assault that a person accused of sexual assault or rape6 cannot rely on a consent achieved by payment of a monetary sum, or in the course of a commercial transaction, as a defence 2.
An explicit legal formulation of a civil action for sexual assault committed in the context of the prostitution system and associated forms of exploitation, whether involving direct commission or complicity in the act.
This proposal takes as its model the Illinois Predator Accountability Act.7 We welcome an opportunity to provide more details on the experiences and research that underlie this submission in evidence to the Committee We also urge the Committee to hear evidence from survivors of the prostitution system, and indeed recommend that the Committee invite such evidence as a matter of signal importance to its deliberations on consent and sexual assault.

4 Simone Watson, Open Letter to Amnesty International (2014).
Also see ‘“Prostitution: We Don’t Buy It” Campaign Launch by Jill Meagher’s Husband Tom’, https://www.independent.ie/videos/irish-news/video-archive-prostitution-we- dont-buy-it-campaign-launch-by-jill-meaghers-husband-tom-31163021.html.

5 See Helen Pringle, ‘Acting Like a Man: Seduction and Rape in the Law’, Griffith Law Review 2.1 (1993) 64-74.
6 We prefer to use the term ‘sexual assault’ because it catches a wider range of sexual violation than penile penetration, an over-narrow definition that figures in many conventional and some legal understandings of the term ‘rape’ 7 Illinois General Assembly, 740 ILCS 128/ Predator Accountability Act, http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2812&ChapterID=57.

Please see other references to the Act noted below.
Current and proposed sexual consent laws in AustraliaSubmission 65 4 Sexual Assault: A Crime of Sex Inequality and Discrimination We believe that the recent (2022) changes to the NSW Crimes Act sections on sexual assault8 provide a solid working model on which to build.
These changes are clarified in the Act by a statement of their objective, in the following terms: An objective of this Subdivision is to recognise the following— (a) every person has a right to choose whether or not to participate in a sexual activity, (b) consent to a sexual activity is not to be presumed, (c) consensual sexual activity involves ongoing and mutual communication, decision-making and free and voluntary agreement between the persons participating in the sexual activity.9 Making explicit in this way the objective of the law on sexual assault is important in setting out its values and boundaries.
We note briefly in passing that ‘ongoing and mutual communication’ cannot by definition be accomplished (or even be a possibility) where a partner to the act is unconscious, even if made so by a preceding act of mutual agreement.
But we caution that sustaining the conditions of ‘ongoing and mutual communication’ does not require ‘enthusiasm’: we do not believe that it is the role of law to investigate and monitor levels of enthusiasm in sexual acts, and believe it is a fundamental mistake to require this of sexual partners, or to use it as another way of speaking about affirmative consent.10 However, we believe that the stated objective in the NSW Crimes Act significantly displaces recognition that sexual assault is most appropriately defined in terms of acts or a context of coercion, which might include not only brute force but other factors that make impossible equality and mutuality in sexual or intimate relationships.
We believe that the basic objective must include an outline of sexual assault as, in the terms noted above: a violation of a sexual nature under circumstances of threat or use of force, fraud, coercion, abduction, or of the abuse of power, trust, or a position of dependency or vulnerability11 This formulation of what constitutes sexual assault draws on the reasoning of international legal forums in deliberations on prosecutions in this area.
For example, the pivotal Rwanda case of Akayesu (1998) defined rape in international law as ‘a physical invasion of a sexual nature, committed on a person under circumstances which are coercive’, where coercion was explained in this way: ‘Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances.’12 8 See Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW), 3.10.1A, https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040#pt.3-div.10-sdiv.1A, now in Crimes Act, Subdivision 1A Consent and knowledge of consent, 61HF.
9 Crimes Act 1900 (NSW), https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040#pt.3-div.10-sdiv.1A.
10 See the short discussions at ABC, ‘Enthusiastic Consent’: What Is It, How Do You Prove It, and Will it Work in Court?’ (8 May 2018), https://www.abc.net.au/triplej/programs/hack/how-do-you-prove-enthusiastic-consent-in-court/9740214, and University of Sydney, ‘What Enthusiastic Consent Actually Looks Like: If It’s Not an Enthusiastic Yes, It’s a No’ (21 September 2022), https://www.sydney.edu.au/study/why-choose-sydney/student-life/student-news/2022/09/21/what- enthusiastic-consent-actually-looks-like-.html.
11 See Catharine A. MacKinnon, ‘Rape Redefined’, Harvard Law & Policy Review 10 (2016) 431-477, 432, where the formulation reads: ‘a physical invasion of a sexual nature under circumstances of threat or use of force, fraud, coercion, abduction, or of the abuse of power, trust, or a position of dependency or vulnerability’.
In our view, sexual assault need not involve ‘invasion’: see the incidents taken up in The Prosecutor v Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International Criminal Tribunal for Rwanda (ICTR), 2 September 1998, para.

429, https://www.refworld.org/cases,ICTR,40278fbb4.html, and The Prosecutor v Mikaeli Muhimana, ICTR-95-1B-T, International Criminal Tribunal for Rwanda (ICTR), 28 April 2005, paras.

32, 65, https://www.refworld.org/cases,ICTR,429c29694.html.
Although the reasoning in the Akayesu decision does not confine the term ‘invasion’ to penetration, we see the use of ‘invasion’ as potentially misleading in popular discussions of sexual assault, perhaps entailing non-cognisance of various acts of sexual violation.

12 The Prosecutor v Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International Criminal Tribunal for Rwanda (ICTR), 2 September 1998, paras.
598 and 688, https://www.refworld.org/cases,ICTR,40278fbb4.html, and discussed in MacKinnon, Current and proposed sexual consent laws in AustraliaSubmission 65 5 Please note that we are not, of course, referring to cases in international law as binding precedents in Australian domestic law.

Rather, as the leading thinking on questions of sexual assault, these cases provide valuable and insightful guidance as to how to understand the respective salience of coercion and of consent in sexual relationships.
The point we draw from the guidance provided by sexual assault cases in international law is not a denial of the importance of consent.

Rather, we wish to draw attention to the way in which a context of inequality of standing in sexual encounters is mobilised such as to make those encounters themselves into occasions for the further unfolding of inequality in the absence of mutuality.
That is, a form of sex discrimination is constructed, in the sense given to that term by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW): For the purposes of the present Convention, the term ‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field [emphasis added].13 The understanding of ‘discrimination’ set out in CEDAW is perhaps not how discrimination is usually understood in popular and media forums, but it does fit an appropriate understanding of sexual assault as an action ‘which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women,… on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’.
General Recommendation No.
19 of the Committee on the Elimination of Discrimination against Women further succinctly explains: ‘The definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately.’14 The Declaration on the Elimination of Violence against Women sets out what counts as violence in such contexts of discrimination against women as members of the class of women: For the purposes of this Declaration, the term ‘violence against women’ means any act of gender- based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.15 That is, the Declaration understand ‘violence’ in terms of what it does to women and to women’s lives, rather than being a word to name specific (physical) actions against individuals such as punching, choking etc.
In summary, we believe that the approach in international law of emphasising a context of coercion rather than an examination for the presence or absence of consent as defining and addressing sexual assault offences is best practice.

The presence of consent as ascertained through mutual affirmation may serve as evidence of whether a coercive context exists in regard to particular incidents, and hence of whether an act was an expression of inequality and/or exemplar of discrimination.
The presence of consent may also serve in some limited circumstances as a defence to a charge of sexual assault.

In other words, it is the existence of coercion (which may or may not include brute force) rather than the non-communication of mutual consent that is best understood as definitional of the ‘Rape Redefined’, 469-470.
The discussion of Alison Cole, ‘Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape under International Law’, International Criminal Law Review 8 (2008) 55–86, provides a useful summary of some unresolved problems in regard to question of the salience of consent in sexual assault cases in international law.

13 UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, U.N.T.S., vol.
1249, p. 13, Article 1, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV- 8&chapter=4&clang=_en.

14 UN Committee on the Elimination of Discrimination Against Women, CEDAW General Recommendation No.

19: Violence against Women, ¶6, U.N. Doc.

CEDAW/C 1992/L.1/Add.15 (1992), https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2FCEDAW%2FGEC%2 F3731&Lang=en.
15 UN General Assembly, Declaration on the Elimination of Violence against Women, 20 December 1993, A/RES/48/104, https://digitallibrary.un.org/record/179739?ln=en.

Current and proposed sexual consent laws in AustraliaSubmission 65 6 offence.

Our attention in these matters should focus directly on elements of coercion as the overall framework for understanding sexual assault.
Prostitution and Sexual Assault: Disqualifying Reliance on Consent The new NSW sexual assault provisions include (section 61HJ) a list of ‘circumstances in which there is no consent’, circumstances indicating coercion, deception, and inequality in trust, dependence, authority etc.
Section 61HJ (2) adds, ‘This section does not limit the grounds on which it may be established that a person does not consent to a sexual activity.’ If the prostitution system is understood as a framework of coercion, it is conceivable that a reliance on consent achieved by payment could be disqualified under this provision.
We believe, however, that explicit reference should be made in the law on sexual assault that a further ground on which it may be established that a person does not consent to a sexual activity is where payment is made in consideration of acts within the prostitution system.
The Preamble to the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (which Australia has not – yet – signed or ratified)16 notes that ‘Prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person’.

Payment for sex is itself a form of constraint, indeed of coercion.
In this situation, the payment is not for a specific good or a service, but rather a payment for suspension of the women’s desire not to consent.

This form of systemic coercion is exacerbated by the gendered nature of the prostitution system and the fundamental inequality and asymmetry of prostitution relationships and of the system itself, placing an inequitable burden of vulnerability on women.
This portrait of the prostitution system outlined by the 1949 Convention is echoed in global trafficking instruments such as the Palermo Protoocol, which notes: For the purposes of this Protocol: (a) ‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation [emphasis added].
Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;…17 The provision explicitly disallows reliance on the consent of a person achieved by payment as a defence to a charge of trafficking.
We should note there that we recognise that many discussions of trafficking proceed on the basis that there is bright line between trafficking and prostitution, with trafficking defined in terms of physical force (eg women handcuffed to beds) and/or fraud (eg women induced into trafficking by false or misleading promises).

Such a distinction between trafficking and prostitution cannot be maintained as a notation of reality.
Trafficking across borders of women into brothels, for example, acts as a feeder system into prostitution in national states.

Moreover, the element of crossing national borders is not maintained in the Australian legal understanding of trafficking.
The Commonwealth Criminal Code includes ‘domestic trafficking’ in its provisions on Trafficking in Persons, covering 16 UN General Assembly, Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 2 December 1949, A/RES/317, Article 3, https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=VII- 11-a&chapter=7&clang=_en.
17 UN General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, Artucle 3, https://treaties.un.org/Pages/ViewDetails.aspx?src=ind&mtdsg_no=XVIII-12-a&chapter=18&clang=_en.
Current and proposed sexual consent laws in AustraliaSubmission 65 7 movement across state borders within Australia.18 In this case, consent cannot be relied upon as a defence.19 Moreover, throughout this section, ‘coercion’ is to be given the same meaning as in Division 270 (Slavery and slavery-like offences), where the term includes coercion by any of the following: force; duress; detention; psychological oppression; abuse of power; taking advantage of a person’s vulnerability.
Our claim is that prostitution as a system of violence and exploitation is not only connected to trafficking empirically on the ground.

The global prostitution system also exhibits common features of coercion that should lead us to address it in largely similar terms as trafficking, in particular, that consent should not be permissible as a defence where cocerion includes such features.
This position is supported by a wide variety of women’s organizations around the world, who draw attention to the wrong of prostitution as a human rights violation like trafficking.

The distinctiveness of this approach is the framework of human rights in which it is centred, as marked by close adherence to the principles and text of particular human rights instruments, and by upholding the central principle or value of the dignity of the person that is the chief animator of human rights talk and action.
These principles and commitments are the basis of the ‘Nordic model’ endorsed by resolutions of the peak European parliamentary bodies in 2014, the European Parliament20 and the Parliamentary Assembly of the Council of Europe.21 It is crucial to note here that such a position on prostitution was is not grounded in a moralistic approach, or in any kind of hostility to women in the prostitution system.
Nor is our position based on considerations about maintaining ‘public order’ in the face of an asserted ‘nuisance’ of prostitution.

Our common concern continues to be with the human rights of women, in protecting the dignity of all women equally, and bringing an end to all forms of the subordination and degradation of women.
We recognise that defenders and beneficiaries of the prostitution industry commonly portray prostitution as a relationship between individuals, in which one person provides sexual services (or performs ‘sex work’) to another person in exchange for money.

Portraying prostitution as a series of such individual, and un-gendered, transactions is a fundamental misunderstanding of the historical and current organization of prostitution.
Prostitution is a system that includes not only sellers (‘sex workers’) but crucially, buyers, as well as pimps and other beneficiaries of the industry (particularly through its close links with the pornography industry).

The prostitution system is also deeply and fundamentally gendered, with the majority of buyers being men, and the majority of those from whom sex is bought being women and girls.
An attempt to consider consent to prostitution outside a full understanding of prostitution as a system fails to comprehend the inequality and subordination, violence and exploitation lying at its foundation.

Closely linked to a defence of prostitution as a series of individual transactions is the emphasis placed by its defenders on women’s ‘choices’ in the industry.
Women’s choices (ie the ‘choices’ of ‘sex workers’) are unquestionably important, but they do not form the driver of the prostitution industry, just as they do not form the foundation of trafficking.

Prostitution as a social institution is driven by (male) demand, that is, the choices that men make in choosing to buy sex and the bodies of women.
We now know a great deal about the character of those choices through what are sometimes called ‘punter sites’, on which sex buyers review brothels and the women with whom they have had a paid relation.

Even in the course of ‘ordinary’ transactions, those choices are brutal.

The Invisible Men Project, for example, collates reports from these sites, providing a chilling picture of the reality 18 Criminal Code Act 1995 (Cth), Division 271, https://www.legislation.gov.au/Details/C2021C00183/Html/Volume_2.
Section 271.11 (Jurisdictional requirements—offences of domestic trafficking in persons or organs) clarifies the reach of the the term ‘domestic trafficking’.
19 See Criminal Code Act 1995 (Cth), 271.11B (Offences against Division 271—no defence of victim consent or acquiescence): ‘To avoid doubt, it is not a defence in a proceeding for an offence against this Division that a person against whom the offence is alleged to have been committed consented to, or acquiesced in, conduct constituting any element of the offence.’ 20 European Parliament Resolution of 26 February 2014, Sexual Exploitation and Prostitution and its Impact on Gender Equality, https://www.europarl.europa.eu/doceo/document/TA-7-2014-0162_EN.html?redirect, based on European Parliament Report of 4 February 2014, on Sexual Exploitation and Prostitution and its Impact on Gender Equality, https://www.europarl.europa.eu/doceo/document/A-7-2014-0071_EN.html?redirect.
21 Parliamentary Assembly of the Council of Europe [PACE] Resolution 1983 of 8 April 2014, Prostitution, Trafficking and Modern Slavery in Europe, https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=20716, based on PACE Report of 26 April 2012, on Prostitution, Trafficking and Modern Slavery in Europe, https://pace.coe.int/en/files/20559.
Current and proposed sexual consent laws in AustraliaSubmission 65 8 for most prostituted women: a reality of violence, desperation, subordination and despair.

22 The main danger to women in prostitution comes from those who prostitute them, and/or who financially and in other ways benefit from their prostitution and the trauma it perpetuates throughout the lives of women.
In 2014, the Parliamentary Assembly of the Council of Europe [PACE] passed a resolution on Prostitution, Trafficking and Modern Slavery in Europe (Resolution 1983) on the basis of a Report prepared by the PACE Committee on Equality and Non-Discrimination, noting: ‘Forced prostitution and sexual exploitation should be considered as violations of human dignity and, as women are disproportionately represented among victims, as an obstacle to gender equality’.23 The 2014 European Parliament Resolution on Sexual Exploitation and Prostitution and its Impact on Gender Equality was made on the agreed basis that ‘prostitution and forced prostitution are forms of slavery incompatible with human dignity and fundamental human rights’.24 Both the European Parliament and PACE resolutions draw attention to the violence of exploitation in prostitution and trafficking.
It is for this reason that the PACE resolution in particular notes that sex worker organizations are not the sole stakeholders in considering measures that address prostitution in one way or another.
The PACE resolution notes, ‘In designing and enforcing prostitution legislation and policies, public authorities should strengthen co-operation with civil society, particularly non-governmental organisations (NGOs), assisting victims of forced prostitution and trafficking, as these are not represented by sex workers’ organisations’.25 Consultation with survivors of the prostitution system is crucial to any project for its reform and to any specific reform options advanced, as well as to the implementation and monitoring of such measures.
The current regulatory framework of the prostitution industry in Australia is a patchwork of legislation that includes criminal law and codes, summary offences legislation, as well as other generally applicable law.

There has been little attempt to address prostitution within a framework of human rights and human dignity.

We believe that our recommendation to disqualify reliance on consent as a defence in sexual assault in prostitution would go some way to do this through legislative reform.
Our proposal also has the potential to remove disincentives to reporting by individual women of sexual assault in the ordinary course of prostitution, which is endemic, as noted in a classic study by pro ‘sex work’ researchers of street prostitution in the Greater Sydney: ‘Given that current PTSD among these women is related to adult sexual assault (which was reported as the most prevalent and most stressful trauma), establishing a safe environment and minimising their ongoing exposure to trauma would entail leaving the sex industry, where occupationally they are at risk of sexual assault on a daily basis.’26 Conclusion: Specific Recommendations for Reform of Sexual Assault Law This submission recommends the following proposals for reform in relation to consent, and for the plan on the law on sexual assault action.27 We make specific legislative proposals, but they would also serve to raise public awareness of the need to change actions and attitudes to the purchase of sexual services and to prostitution.
We 22 The Invisible Men Project, https://the-invisible-men.tumblr.com/.

For the Australian context, see Natalie Jovanoski and Meagan Tyler, ‘“Bitch, You Got What You Deserved!”: Violation and Violence in Sex Buyer Reviews of Legal Brothels’, Violence against Women 24.16 (2018) 1887-1908; Meagan Tyler and Natalie Jovanovski, ‘The Limits of Ethical Consumption in the Sex Industry: An Analysis of Online Brothel Reviews’, Women’s Studies International Forum 66 (2018) 9-16.
23 PACE Resolution 1983 of 8 April 2014, Prostitution, Trafficking and Modern Slavery in Europe, ¶6, https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=20716.

24 European Parliament Resolution of 26 February 2014, Sexual Exploitation and Prostitution and its Impact on Gender Equality, s. B, https://www.europarl.europa.eu/doceo/document/TA-7-2014-0162_EN.html?redirect.
25 PACE Resolution 1983 of 8 April 2014, Prostitution, Trafficking and Modern Slavery in Europe, ¶10, https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=20716.

26 Amanda Roxburgh, Louisa Degenhardt and Jan Copeland, ‘Posttraumatic Stress Disorder among Female Street-Based Sex Workers in the Greater Sydney Area, Australia’, BMC Psychiatry 6 (2006), https://bmcpsychiatry.biomedcentral.com/articles/10.1186/1471-244X-6-24.
27 Work Plan to Strengthen Criminal Justice Responses to Sexual Assault 2022-2027, https://www.ag.gov.au/system/files/2022-08/MAG-work-plan-strengthen-criminal-justice-responses-to-sexual-assault- 2022-2027.pdf.

Current and proposed sexual consent laws in AustraliaSubmission 65 9 do not have to wait for attitudes to change before actions change.
Crucially, such public educative efforts via the law have the potential to raise general awareness with regard to the importance of mutually respectful, gender- equal and violence-free sexuality and sexual practices.

It can sometimes be difficult to understand prostitution as coercion, even despite the high incidence of acts of violence in the ‘normal’ course of prostitution transactions being well-known.
There is a general cultural consensus in Australia (and elsewhere) that payment for sex presents no general barrier to recognising the presence of consent, or indeed the presence of mutual affirmative consent.

This understanding is held across the board.

It is not a left- right issue.

This cultural ‘blind spot’ in understanding the prostitution system as coercive can be deadly for women in prostitution.
An illustrative case is that of Henry Jiang.28 Mr Jiang was a real estate agent who broke into a vacant house and paid an escort agency for a women to come there.

At the end of the hour, in which Mr Jiang experienced sexual incapacity, the woman made to leave, but was blocked by Jiang, who put a sponge in her mouth and bound her across the face and by the hands with electrical cable.
The woman alleged that Jiang then vaginally, anally and digitally anally raped her, performed unprotected oral sex on her, and indecently assaulted her.

She finally escaped without her clothes, with the police having to use bolt cutters to release her bound hands.

The Magistrate refused bail to Jiang on the basis of what he characterised as ‘sustained torture’ and ‘brutal rape’.

Jiang’s defence was that there was consent to the whole encounter.
The jury acquitted him on seven charges of false imprisonment and sexual assault.

Jiang pleaded guilty to a separate charge of theft, in the course of a dispute over drugs, of a small amount of money and the woman’s mobile; the judge suggested that the jury members in the previous case had seemingly made their decision on the apparent basis that Jiang had paid for the woman, and that he was within his rights in seeking the completion of their mutual agreement.
In such cases, and particularly where there is a history of repeated violation of women in prostitution (a notorious recent example being Adrian Bayley, who murdered Jill Meagher),29 the context of coercion should disqualify prima facie any reliance on consent in answer to the charge, but also severely truncates any possibility of the withdrawal of ‘consent’.
Our first recommendation is as follows: An explicit clarification in all legal statements on sexual assault that a person accused of sexual assault or rape cannot rely on a consent achieved by payment of a monetary sum, or in the course of a commercial transaction, as a defence In order to give ‘teeth’ to this provision, we recommend that a civil action be enabled for sexual assault and abuse in the context of prostitution: An explicit legal formulation of a civil action for sexual assault committed in the context of the prostitution system and associated forms of exploitation, whether involving direct commission or complicity in the act.
This provision might seem in some way superfluous if there is an effective and enforced law on sexual assault on the ground of coercion.

However, this recommendation represents a response to aggravated sexual assault, relating to the systemic and organised character of sexual assault both in the course of prostitution, and incidental to it.
The enabling of such a cause of civil action was pioneered by the Illinois Predator Accountability Act of 2006,30 allowing ‘persons who have been or who are subjected to the sex trade to seek civil damages’, with the ‘sex trade’ being defined widely so as to include soliciting a woman in prostitution, pandering, keeping a place of prostitution, 28 DPP v Jiang [2016] VCC 494 (26 April 2016), https://www.austlii.edu.au/cgi- bin/viewdoc/au/cases/vic/VCC/2016/494.html.
29 See The Queen v Bayley [2013] VSC 313 (19 June 2013), www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic /VSC/2013/313.html.

30 Illinois General Assembly, 740 ILCS 128/ Predator Accountability Act, http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2812&ChapterID=57.
For further discussion of the Act, and the obstacles to its wider use, see Samir Goswami, ‘From Street Corner to Statehouse: Survivors’ Struggle for Civil Rights’ in Global Perspectives on Prostitution and Sex Trafficking: Europe, Latin America, North America, and Global ed.

Rochelle L. Dalla et al.


(2011); Shay-Ann M. Heiser Singh, ‘The Predator Accountability Act: Empowering Women in Prostitution to Pursue their own Justice’, DePaul Law Review 56 (2007) 1035-1063; and the shorter account in Christopher P. Keleher, ‘The Illinois Predator Accountability Act: A Sleeping Giant’, Illinois Bar Journal 98.11 (November 2010), https://amicuscreative.com/global_pictures/1123/Predator_Accountability_Act_Article.pdf.
Current and proposed sexual consent laws in AustraliaSubmission 65 10 pimping, obscenity, trafficking over the areas of street prostitution, pornography, escort services, and massage parlours and brothels.

Neither of our recommendation are punitive of women in prostitution.
It is our view that prostitution is not a victimless crime, and that it would be unjust and at odds with human rights principles to punish those who are its victims and who suffer its wrong and injuries often throughout the rest of their lives.

Finally, our proposals in tandem would serve as a reminder to popular culture and the media that sexual assault of women in coercive circumstances is not to be mitigated by reference to her ostensible consent.
An expression of consent born of vulnerability, powerlessness, of poverty does not indicate the free consent of citizens in a democracy.

If we as a society and culture continue to fail to comprehend this, we ensure that some women are left behind.

And we thereby ensure that it is no great matter that they are left behind, and that not all women have a human right to the enjoyment of the world on equal terms with other women, and with men.
Committee Secretary Senate Legal and Constitutional Affairs Committee PO Box 6100 Parliament House Canberra ACT 2600 Current and proposed sexual consent laws in AustraliaSubmission 65