A change in consent laws: The adoption of an affirmative consent model in Victoria

Content warning: This article contains information in relation to sexual harm and image-based sexual abuse. If you require any support, we encourage you to contact the CASA Sexual Assault Crisis Line on 1800 806 292, Lifeline on 13 11 14, or 1800 RESPECT.

Last month the Victorian Parliament adopted an affirmative consent model, shifting the onus of proving consent onto perpetrators of sexual violence, rather than victim-survivors. The passing of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 (Vic) (the Act) on 30 August 2022 will result in significant reforms to Victorian laws that prohibit sexual harm.

The Act provides for key changes to consent laws under the Crimes Act 1958 (Vic) (the Crimes Act), as well as other reforms to reflect the recommendations made by the Victorian Law Reform Commission in its Improving the Justice System Response to Sexual Offences report last year.

According to that report, one in five women and one in twenty men over the age of 15 have experienced sexual assault. Reportedly, almost eight per cent of adults have experienced child sexual abuse before they were 15, but the rate may be higher due to significant barriers to reporting and disclosure.

Broadly, the Act introduces changes including:

  • an updated definition of consent;
  • adopting an ‘affirmative consent model’ within Victoria;
  • the inclusion of ‘stealthing’ as a sexual offence;
  • changes to image-based abuse laws; and
  • a range of improvements to criminal procedure to better protect victim-survivors and witnesses, including directions given to juries to address misconceptions about sexual violence.

These amendments will strengthen sexual offence laws, provide additional protections for victim-survivors of sexual harm, and promote accountability for perpetrators. Organisations should ensure that they are aware of the changes, and the implications those changes might have on how they communicate about, prevent and respond to sexual harm.

What is the affirmative consent model?

To understand the changes, we must first understand the affirmative consent model.

The ‘affirmative consent model’ places the onus on each individual person participating in a sexual act to actively seek consent from the other person (or persons), rather than relying on the other person to provide consent. This requires a person to answer the question “what did I do to confirm that the person was consenting to sexual activity?” It is a move away from assuming that a person has consented, and towards requiring active, positive and explicit consent.

Adopting the affirmative consent model, the Crimes Act now requires a person accused of a sexual offence to demonstrate that they sought and received consent for the sexual act engaged in.

A shift to an affirmative consent model will not only make it clear that everyone has a responsibility to obtain consent before engaging in sexual activity, but will also mitigate the risk of re-traumatisation for victim-survivors of sexual harm who make a report or participate in a court process.

Definition of consent – what’s changed?

One of the most significant changes to the Crimes Act is the amendment of the definition of consent. Under section 36 of the Crimes Act, consent is now defined as a ‘free and voluntary agreement’.

To provide qualification to this definition, two further amendments have been made to section 36 of the Crimes Act.

These amendments are:

  • that a person does not consent to an act just because they do not resist the act verbally or physically; and
  • that just because a person has previously consented to a previous sexual behaviour (whether the same or different), does not mean that they will provide consent in the present situation.

Section 36AA of the Crimes Act also outlines the circumstances in which a person does not provide consent. Five new circumstances have been added where there can be no valid consent. The new circumstances for no valid consent include where there has been:

  • force, harm or fear of force or harm of any kind;
  • coercion or intimidation;
  • abuse of a relationship of authority or trust;
  • false or misleading representation about payment for commercial sexual services; and
  • agreement that a condom will be used, when in fact it is not used, removed or tampered with (otherwise known as ‘stealthing’).

The inclusion of ‘stealthing’ is particularly notable, with the Crimes Act in Victoria never having any legal consequences attached to it prior to these amendments.

Examples of consent

Commentary around the new amendments indicates that there is no one ‘right way’ to give or obtain consent. However, practical examples that have been provided are:

  • verbally asking and getting a “yes” in response;
  • a physical gesture such as a nod; or
  • reciprocating a move such as removing clothing.

This list is not exhaustive.

‘Free and voluntary agreement’ – What does that mean?

The use of ‘free and voluntary agreement’ clarifies that consent can only be obtained in a manner that is free of coercion, threats, or other inappropriate means, and reinforces that involuntary bodily reactions are not an indication of consent. Notably, the reforms aim to capture situations where a person abuses their position of power in a relationship and acts in a manner that causes the other person to engage in a sexual act or feel as if they need to.

It also ensures consistency in the definition of consent between other jurisdictions, with both terms being part of the definition of consent in other Australian jurisdictions.

In our work with children and young people in educational settings (often who are vulnerable), Moores advocates for consent that is free, voluntary, and informed. This means that a person should understand what they are consenting to and how they feel about it, and feel freely able to say yes or no without fear of consequences, regardless of their environment.

Reasonable belief

Another significant change to the Crimes Act is the introduction of the requirement for a person to actively obtain consent from any person that they are about to engage in a sexual act with. When determining whether consent has been given, courts have previously focused on the accused’s actual belief and whether the belief was reasonable in the circumstances.

However, the reforms now place the onus on each person to take an active step to ascertain consent for their belief to be reasonable. This requires each person actively saying or doing something to find out if there is consent. Reasonable belief in consent can only occur when someone willingly and actively agrees to be involved in the sexual act.

Changes to image-based abuse laws

The amendments to the Crimes Act also target image-based sexual abuse, and apply the same definition of consent to the production and distribution of intimate images. The amendments alter the offences relating to distributing and threatening to distribute such images and increase the penalties for those offences.

Image-based sexual abuse involves the non-consensual production and/or sharing of intimate images, or threats to do so. Although the prohibition of image-based sexual abuse is not new, the amendments provide for a stronger criminal justice system approach, reflecting the serious and harmful impacts of sharing a person’s intimate images without their consent.

The definition of an ‘intimate image’ has also been expanded to include digitally created or digitally altered images, and to extend the definition to better apply to gender diverse victim-survivors.

Further, courts will now be empowered to make orders for the destruction or disposal of intimate images produced or distributed without consent, empowering courts to make a ‘disposal order’ for the destruction or disposal of an intimate image.

This is a key reform for organisations working with children and young people to consider with a recent study indicating that one in three teenagers has experienced image-based abuse.

Changes to criminal procedure

Changes to criminal procedure under the Crimes Act will see greater protections for witnesses and victim-survivors during cross-examination, which has been identified as a significant barrier to redress and source of retraumatising for victim-survivors. Courts will now be required to consider the need to minimise trauma that might be experienced by the witness, and any relevant condition or characteristic of the witness, in determining whether cross-examination is appropriate and necessary.

The Crimes Act’s new requirements for jury directions will also mean that jurors in sexual offence trials will be given further guidance in decision making, including with regard to the meaning of the relevant standard of proof in criminal trials, and the matters that should and should not be taken into account.

The new jury directions are intended to address common misconceptions about sexual offences that may otherwise lead to flawed decision-making and unjust outcomes, including in relation to the consumption of alcohol, and inferences drawn from whether a person is exhibiting obvious signs of distress when giving evidence. Juries will be directed to consider that a person’s emotional state may not reflect the truthfulness of their evidence.

The amendments also prohibit statements that undermine the credibility of complainants, because they are sex workers or have a particular sexual orientation or gender identity, in an attempt to protect against harmful stereotypes and assumptions.

Impact on organisations

Organisations need to consider how these legislative changes will impact any internal policies or sexual harm prevention strategies, and how they should be communicated throughout the organisation. This may include further training and information, including for staff, students and residents in educational and residential settings.

For organisations working with children and young people, these reforms may require consultation with the children and young people accessing their services. This is particularly so considering the new Victorian Child Safe Standards (effective 1 July 2022) which require organisations to empower children and young people to understand their rights in relation to their safety.

How we can help

Moores welcomes these reforms to consent and sexual offence laws, and acknowledges the Victorian Government’s commitments to improving the justice system’s treatment of victim-survivors of sexual violence.

If you have any queries about the affirmative consent law reforms, or how to implement an organisational strategy to prevent sexual harm, Moores can assist. Our safeguarding team is well-equipped to assist organisations with the development of policies and procedures, consultation with staff, children and young people, training and education on consent and image-based abuse, and responding to concerns of sexual harm and image-based sexual abuse.

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Please contact us for more detailed and tailored help.

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