What do the affirmative sexual consent law reforms passed in NSW and proposed in Victoria mean for each state?

Affirmative consent reforms will change the laws to better deliver justice to victims of sexual assault

Major sexual consent reforms have passed through the New South Wales parliament this week and have also been proposed in Victoria. The affirmative consent reforms will change the laws around sexual consent to better deliver justice to victims and survivors of sexual assault.

The changes come after law reform commission reviews and a campaign by advocates such as Saxon Mullins from Rape and Sexual Assault Research and Advocacy.

What will change in Victoria?

The Victorian government will introduce a requirement for affirmative consent. This means a person must take active steps to confirm they have received consent for sexual activity or risk committing a crime.

The government will also amend laws to make “stealthing” – the act of removing a condom during sex without the other person’s knowledge or consent – explicitly illegal.

Previously, Victoria required communicative consent between parties, but the office of public prosecutions was concerned about how it had been applied.

Attorney-general Jaclyn Symes said the changes to the Crimes Act 1958 (Vic) would “flip” the system which had previously placed too much focus on the behaviour of victims.

“This means the questions will be on the perpetrator: What did you do to ensure that you knew the person was consenting to sexual activity?” Symes said.

As part of the initial response, the government will develop a 10-year strategy to address sexual offending following an 18-month examination from the Victorian Law Reform Commission. The commission’s report tabled 91 recommendations and found sexual violence was widespread, caused serious harm and was under-reported.

Symes said all of the commission’s recommendations would be considered and $5.2m will be provided to sexual assault services in response to increased reporting and demand.

The legislation will be introduced in 2022.

What about in NSW?

The NSW government’s Affirmative Consent Bill passed the Upper House on Tuesday, 23 November. Under the legislation, the NSW Crimes Act will be changed to specify consent to sexual activity must be communicated by words or actions, not simply assumed.

This has particular significance for the justice process as some victim-survivors present the “freeze” response in a fearful situation where they may be unable to verbally stop the perpetrator from continuing.

It means:

(a) a person does not consent to sexual activity unless they said or did something to communicate consent; and

(b) an accused person’s belief in consent will not be reasonable in the circumstances unless they said or did something to ascertain consent.

They will also retain the current meaning of consent as a free and voluntary agreement, while adding that it must be present when sex occurs. They will also affirm a person’s right to withdraw consent at any point; make clear that if someone consents to one sexual act, it doesn’t mean they’ve consented to other sexual acts; clarify the definitions of “sexual intercourse”, “sexual touching” and “sexual act”; and clarify that a defendant cannot rely on self-induced intoxication to show they were mistaken about consent.

Five new jury directions for judges to give at trial will also be provided to address common misconceptions about consent and ensure a victim’s evidence is assessed fairly and impartially.

It will also provide education programs for judges, legal practitioners and police on how to best navigate victims of sexual assault through the judicial process.

The affirmative consent model is generally designed to overcome a common hurdle in rape and sexual assault trials in some jurisdictions – that an alleged offender had “reasonable grounds” for believing the complainant had consented.

Greens spokesperson for women Jenny Leong said the “vital” reform would help deliver justice for sexual assault survivors.

How are these laws different from previous laws?

Under previous NSW law, a person commits sexual assault if they know the other person is not consenting, if they are “reckless as to whether” they consent, or there are no reasonable grounds for believing there was consent.

This was a key point in the case of Luke Lazarus, who was accused of raping Mullins. He was found guilty at his first trial, overturned the matter on appeal, and was then found not guilty during a retrial when judge Robyn Tupman found he had a “genuine belief” that Mullins consented. That ruling was later overturned but the court of criminal appeal did not order another trial.

How are these reforms being received?

The proposed NSW laws were hailed by Dr Rachael Burgin, director at Rape and Sexual Assault Research and Advocacy, as “leading the country”.

Mullins celebrated the announcement, and thanked survivors who had worked to change the law, saying that “I can never go back and change the outcome of my case, but we have changed how some stories will end”.

When similar laws were passed in Victoria, Mullins welcomed the commonsense approach to sexual assault cases, and said the court process could often be a “real re-traumatisation” for victims.

Saxon Mullins
Saxon Mullins has celebrated changes to sexual consent laws in NSW. Photograph: PR IMAGE

“Not only are you sharing such a horrible story, a really awful moment, again and again … but you’re also being subjected to really horrible ways of going about it, questioning your character and your truth,” she said.

Sexual assault survivor Brittany Higgins hailed the Victorian reforms as an “incredible step forward” and said she was “overwhelmed with emotion”.

Leong said the NSW reforms were a significant step forward but Australia still had a long way to go. “We still need proper consent education across the board,” she said.

“Only then can we begin to prevent these assaults from happening in the first place, and ensure that all survivors are given the best chance at receiving justice.”

What is the situation in other states?

Experts have previously said Tasmania had the “gold standard” in Australia (though that is contested).

Queensland strengthened consent laws in March, but advocates believed the changes did not go far enough. The changes included principles such as silence doesn’t amount to consent, consent once given can be withdrawn, and the self-intoxication of a defendant cannot be relied upon to show that they were mistaken about whether or not consent was given.

Western Australia has similar laws to those in Queensland prior to the recent amendments, meaning a “mistake of fact” defence remains open. This is seen as problematic as it allows those accused of rape to argue they had an honest and reasonable belief of consent but were mistaken.

South Australia and the Northern Territory law both refer to a “free and voluntary agreement”. The ACT government is reviewing its laws, after it was previously found it was the only state or territory without a statutory definition of consent.

How does the law in Australia compare with laws internationally?

Pretty well, according to this piece published in March. It found that Australia is one of the world’s most progressive jurisdictions, on par with countries such as England, Wales, New Zealand and Canada.

In Europe, a recent Amnesty International analysis found only 12 out of 31 countries had consent-based definitions of rape. This includes the UK, Ireland, Sweden, Denmark, Iceland, Germany, Belgium, Luxembourg, Malta, Greece, Croatia and Cyprus.

Sweden lists no exceptions, removing all defences like the “reasonable steps” rule that still exists in some Australian jurisdictions.


Caitlin Cassidy

The GuardianTramp

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