New South Wales Police Commissioner Mick Fuller’s proposal for an app that records consent has been widely criticised, including by those working with survivors of sexual assault.
The app, which Fuller speculated on March 18 could be used in a similar way to the Service NSW COVID-19 app, would record consent of individuals prior to having sex.
Lawyers and legal experts said that if the consent app was used as evidence in a trial it would only be used to discredit victims.
Rachael Burgin, Swinburne University of Technology law lecturer and co-founder of Rape and Sexual Assault Research and Advocacy, told the ABC that Fuller showed a “lack of understanding about lived experience of sexual violence”.
“The reality is people consent or agree to sex because they are coerced, forced or there is violence involved. An app doesn’t capture the nuance of true consent.”
The fact is that consent can be withdrawn at any time. People may consent to some acts but not others. An app would require widespread use, which is unlikely, and it doesn’t prevent people from being coerced or pressured into consenting to someone against their wishes.
There was a rise in the number of reported sexual assaults last year with more than 15,000 women reporting the crime. However, the Bureau of Crime Statistics and Research reports that just 2% of the allegations led to guilty verdicts in court.
Fuller has since said the app idea may be flawed, even admitting it might be “the worst idea [he’s] had all year”.
Meanwhile, the NSW government is yet to act on 44 recommendations from the NSW Law Reform Commission, tabled last November, to change the antiquated laws dealing with consent.
Fuller’s app suggestion demonstrates how removed the NSW Police are from understanding consent by reducing it to a single moment. This is also evident in the way the police investigate sexual assault.
The Redfern Legal Centre (RLC) wants police to reveal its operating procedures on how alleged sexual assault is investigated.
RLC was responding to Fuller’s March 8 comments on Nine Radio claiming that Attorney General Christian Porter’s alleged rape of a 16-year-old girl in 1988 would “probably” not have made it to court, even if the alleged victim were still alive.
RLC police accountability solicitor Samantha Lee said that the release of these guidelines is critical because “the journey through the justice system begins with the police … What happens at the beginning of that journey can greatly impact where that journey leads.”
The Porter case also shows how sexual assault allegations are downplayed by police. Fuller claimed in NSW budget estimates on March 12 that police had not received an extensive document detailing the allegations against Porter before closing the case.
However, Australian Federal Police Commissioner Reece Kershaw revealed on March 22 that the document had been sent in early March. Kershaw also said he would have passed it on earlier if NSW Police had requested. He said they had told him there was “no urgency”.
This casts doubt on Fuller’s claim that the police could not get a statement from the now deceased woman because of COVID-19 travel restrictions which prevented police from going to South Australia.
NSW Police spoke to the alleged victim five times on the phone and six times via email. They also decided that a face-to-face meeting was essential.
Fuller said on March 12 that the police could not continue to investigate the case because the woman had withdrawn her complaint the day before she took her own life last year. He said it is “custom” to respect the wishes of victims.
Fuller’s excuses do not stand up to scrutiny.
Porter has since launched defamation proceedings against the ABC and Four Corners journalist Louise Milligan. Some say the lawsuit will act as the public inquiry into Porter’s ability to stay in office. The woman’s family, and many others, are calling for a full independent inquiry.
Fuller’s mishandling of the Porter case and his short-lived app idea shed light on why there has been an increase in strip searching — now widely accepted as a form of sexual assault — while he has had the NSW police commissioner job.
[A petition for an inquiry into the rape allegations against the Attorney General and women’s safety in Parliament House can be signed here.]