The Craig McLachlan case shows how far we still have to go in the fight for consent law reform

<span>Photograph: Dan Himbrechts/AAP</span>
Photograph: Dan Himbrechts/AAP

Here we stand in the aftermath of yet another high-profile sexual assault case. This latest judgment comes from magistrate Belinda Wallington, who last week delivered a long explanation of her ruling to find actor Craig McLachlan not guilty. The question is: how could a magistrate have said the complainants were “honest”, and yet the defendant was acquitted? While McLachlan has always maintained his innocence, the case is a reminder both of how far we’ve come in the fight for rape and consent law reform, and how far yet we have to go.

The allegations made by four different women against McLachlan amounted to seven counts of indecent assault and six counts of common assault. They all arose out of the 2014 stage production of The Rocky Horror Picture Show. Magistrate Wallington said that “the four complainants were brave and honest witnesses” and: “I was not persuaded that there was evidence of collusion between the complainants. I was not persuaded that there was evidence of motive or that the complaints were made for reasons for career ambition or for any other such reason.” In other words, they weren’t lying. So why was McLachlan found not guilty of all 13 charges? The magistrate found the evidence did not meet the standards required to prove the charges according to the laws as they applied in 2014.

Related: Craig McLachlan found not guilty of indecently assaulting Rocky Horror co-stars

The contention at the heart of this case is not actually whether or not the complainants were, in their minds, consenting, but rather: what was the defendant thinking? The big and tricky legal issue at the heart of the fight for reform across Australia is about the “intent” of the defendant. In some states and territories it is enough for the judge or jury to find that a defendant is “reckless” as to whether or not there was consent – for example, that he “should have known”.

There is a long and complicated legal history about the difference between “subjective” and “objective” states of mind. Put simply: in some times and places the question a jury or judge needs to ask is: “what was this specific defendant thinking?” Whereas in other times and places, the question a judge or jury needs to ask is: “what would a reasonable person” or “a reasonable person in the position of the defendant” be thinking? The law sometimes refers to these two different options as “honest” and “reasonable” beliefs, respectively. In some times and places, you need both.

An important and fundamental legal principle is that laws cannot be “retroactive”. Our conduct on any given day can only ever be judged according to the law of that specific day. Unfortunately for the complainants in McLachlan’s case, Victoria only updated its laws in 2015. When that run of Rocky Horror Picture Show was playing, the principles outlined in the UK case of DPP v Morgan had not yet been sufficiently updated in Victoria. The decision in Morgan meant that a defendant didn’t need a “reasonable” ground to think the complainant was consenting. The facts of the Morgan case were, frankly, horrific. Yet the ruling stuck for a long, long time. Indeed, there are plenty of men and women practising law in Australia who would like to return to these standards. The submissions made by bar associations into various states’ consent law reform reviews are often shockingly regressive in this way.

In the McLachlan matter, the magistrate’s comments made clear: “I’m unable to exclude the possibility that an egotistical, self-entitled sense of humour led the accused to genuinely think that … [she] was consenting to his actions. The law on consent has been replaced with a more objective test: was the accused’s belief reasonable? Were the current law applicable, it is possible the result may have been different.”

It is at times like this, with statements like Magistrate Wallington’s, that I feel simultaneously grateful for the progress this area of law reform has seen in recent decades, and furious and frustrated at the people who still stand in the way of decent reform.

In the majority of incidents of rape or sexual assault, the complainant and defendant are known to each other. A stranger jumping out of the bushes is the exception, not the rule, in sex crime. But unless an allegation matches these old myths, it can be extremely difficult to prove that a specific defendant deliberately intended to commit a crime, when he can simply suggest he honestly believed a woman was consenting. A defendant does not even need to forfeit his right to silence to do this – defence barristers can suggest and insinuate entire slut-shaming and victim-blaming narratives by the way they cross-examine complainants.

Magistrate Wallington criticised McLachlan’s barrister, Stuart Littlemore QC, for his “inappropriate” lines of questioning, about “the length of the average female labia majora, or whether a complainant was proud of her figure or other troubling and outdated stereotypes of sexual assault victims their clothing and bodies … It was perturbing that defence appeared unfamiliar with section 41 of the Evidence Act, which prohibits such inappropriate questions.”

Related: Sexual offences review says consent must be communicated 'through words or actions'

The fact is, the legal profession has a problem with misogyny. The revelations about Dyson Heydon are one example of this. The high court’s inquiry found the judge had sexually harassed six of his associates, and several other women have subsequently come forward with allegations of their own. Heydon has denied any wrongdoing. It reflects extremely poorly on the culture and state of the industry that so many people have referred to Heydon’s alleged behaviour as an “open secret”. It is clear to me that all manner of prejudices can flow into the way justice is done and further hamper progress.

In New South Wales it was the incorrect and unclear directions given to the jury about Luke Lazarus’ state of mind that led to his original conviction being appealed. In the first retrial, Judge Tupman acknowledge that the complainant, Saxon Mullins, wasn’t consenting, but that Lazarus had a “genuine and honest belief” she was. Tupman’s decision was appealed, and the court of appeal said it would have been too onerous to send the matter back to court for a third time, and Lazarus’ acquittal stood. We have just recently received the final report from NSW’s law reform commission in its review of consent law, which Mullins has criticised as a missed opportunity.

This question of whether or not the defendant “knew” or “ought to have known” if the complainant was consenting is the same issue my colleagues and I are still fighting over in Queensland. The “mistake of fact” excuse, as it currently exists in Queensland and Western Australia, still allows terrible rape myths and outdated stereotypes into the courtroom. The Queensland law reform commission’s final report into consent and “mistake of fact” was, essentially, that there was no problem with the law, and that nothing needed to be done to change it. Their limited recommendations haven’t yet been enacted because criticism of the report from the community and advocacy groups were loud and unanimous.

Submissions to Victoria’s latest review into “Improving the response of the justice system to sexual offences” are open until 23 December. Substantial improvements to these issues are slow and only won after years of hard slog. High-profile not-guilty verdicts can be disheartening to those who would like to come forward, but we keep fighting so that survivors who come after us might benefit from that “different” result.

• Bri Lee is a Sydney-based lawyer, writer and the author of Eggshell Skull, and Beauty