The controversial reason why a woman's alleged rapist will not face prosecution has shone the spotlight on affirmative consent laws in Australia.
Tasmanian woman Bec reportedly met with a male friend at a bar early last year and the pair shared a bottle of wine together before the man proceeded to buy her another two drinks. Intoxicated, Bec's memory became hazy when the man encouraged the pair to leave the venue.
"My next memory is just blacked out vision. I think we're walking back to the car and it's a couple of seconds of memory where I kind of reflect to him, 'Hey we shouldn't be driving'," she told ABC's 7.30 program.
Despite her protests, the man allegedly insisted the pair get in the car.
"Then my next memory is the rape... I only have one very small memory of that," she said.
Bec needed confirmation the pair had a sexual encounter
The following morning Bec had little recollection of what happened and she decided to text the man to ask for clarity. He confirmed the pair did have sex.
"We did have sex last night, sorry you don't remember it. I also didn't use protection," Bec said while recalling the text she received.
Bec noted the man's "blatant disregard" toward her lack of memory and said she was shocked by the apparent disinterest in any distress she was now feeling.
Tasmania was the first Australian state to introduce the law of affirmative consent in regard to cases of alleged sexual assault. It means both parties have to communicate in an affirmative way, by doing or saying something, that they are consenting to what is happening.
Why police decided not to proceed with the case
Bec says she did not consent to sex with the man. But in Australia, prosecution can only proceed when it is believed by authorities there's a reasonable chance of conviction. After investigating her case for almost a year police said there was not enough evidence and told her they were limited by her not remembering much about what happened
Police investigated the likelihood that she was too intoxicated to have been able to consent. Bec was told by police that in the CCTV of the pair walking to the man's car she didn't look drunk. Bec said she was angry and confused by the police feedback and said there was other footage where she was very clearly intoxicated.
"I just felt as though, if the reason that I don't remember is the reason you don't continue, in what cases do these get prosecuted? Who has a chance?" she asked.
"Is it when it’s only violent? Is it when it’s a total stranger? Is it when it’s only that you’re sober, or that there’s no alcohol or drugs involved? It has to tick these very small boxes, which we know isn’t the case for most rapes," she said.
Victim says affirmative consent laws are not helping
Critics of Australian sexual assault laws say that even with the introduction of the affirmative consent rule the process is still stacked in favour of the defendant,.
"It's all well and good to have affirmative consent laws if the processes don't reflect affirmative consent," Bec said.
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