The ‘circumstances” suggest that it can.
The matter of consent in sexual harassment has been an issue that has garnered significant attention in recent times. An interesting recent judgement handed down by Justice Michael McDonald may just add a whole new dimension to the matter of consent.
On 9 February 2022, Justice McDonald provided his judgement in the matter of Lanigan v Circus Oz that found that it was arguable that an act of a sexual nature that was consensual at the time that it occurred could become unwelcome when all of the circumstances were reviewed to the target of the behaviour.
Lanigan vs Circus Oz relates to a claim of sexual harassment and victimisation brought by Ms Lanigan against Nick Yates and Circus Oz. Ms Lanigan and Mr Yates were both employees of Circus Oz in 2006 when Mr Yates allegedly subjected Ms Lanigan to an act of a sexual nature in the workplace. The matter was an appeal from VCAT and found that claims of sexual harassment and victimisation under the Equal Opportunity Act 2010 are not subject to the Limitation of Actions Act 1958.
While the matter was complex including Ms Lanigan using the incident and subsequent events in a fictional novel she wrote in 2016, there was a very interesting element to Justice McDonald’s decision regarding an argument put by Mr M Harmer who appeared for Ms Lanigan.
Mr Harmer argued that conduct of a sexual nature, although not unwelcome at the time it occurs, may become unwelcome as a result of subsequent events. Mr Harmer argued that when the act occurred Ms Lanigan was not aware that Mr Yates was married and as such in participating in the act provided consent to Mr Yates. Mr Harmer argued that had Ms Lanigan known that Mr Yates was married then she would not have provided consent. Mr Harmer further argued that circumstances that followed the act including Mr Yates telling his wife of his feelings for Ms Lanigan, Ms Lanigan receiving a text message from Mr Yate’s wife, a telephone call from a friend regarding the incident and Ms Lanigan then being shunned by other Circus Oz performers that the act became unwelcome conduct of a sexual nature.
Mr Harmer further argued that the definition of sexual harassment in section 92 of the Equal Opportunity Act (Vic) requires consideration of whether a reasonable person having regard to all the circumstances would have anticipated that Ms Lanigan would be offended or humiliated. Mr Harmer further argued that the circumstances included Mr Yates telling his wife of his feelings for Ms Lanigan, Ms Lanigan receiving a text message from Mr Yate’s wife, a telephone call from a friend regarding the incident and Ms Lanigan then being shunned by other Circus Oz performers.
In his judgement, Justice McDonald stated that ‘I accept Mr Harmer’s submission that it is arguable that by reason of subsequent events an individual who welcomed conduct of a sexual nature at one point in time may subsequently regard the conduct as unwelcome. For example, an individual might willingly engage in sexual activity with another person in the belief that the person is single and interested in a long-term relationship. Subsequently, the individual might discover that the other person is married with children. It is arguable that conduct of a sexual nature which was welcomed when it initially occurred would be considered unwelcome once the individual becomes aware of having been deceived.’
Justice McDonald further stated ‘it is arguable that the phrase ‘all the circumstances’ in section 92 of the Equal Opportunity Act (Vic) encompasses circumstances not known at the time conduct of a sexual nature is engaged in, but which subsequently comes to light. It is arguable that in light of all the circumstances conduct of a sexual nature which was welcomed at the time it occurred, might become unwelcome within the meaning of section 92 of the Equal Opportunity Act (Vic).’
Justice McDonald’s judgement provides the argument for future complainants being able to argue that while they provided consent at the time the act of a sexual nature occurred that subsequent circumstances that come to light unknown to the complainant at the time of the act could have led them to not provide consent at the time of the act that the sexual act would therefore become unwelcome and the consent is therefore removed.
While Justice MacDonald did not have to make a final decision on this issue, his decision creates a new dimension for consideration regarding consent.