Community attitudes around consent are shifting. Tireless advocacy by a number of victim-survivors and advocacy groups has sparked a national conversation about consent and sexual assault over the past few years, culminating in the announcement of landmark changes to consent in NSW in May 2021.
In this article, we contrast the proposed affirmative consent laws in NSW to the consent laws in Victoria, and provide practical tips on what schools should do to raise awareness of these changes and prevent sexual harm.
In 2018, the NSW Law Reform Commission (NSWLRC) commenced a review of consent laws, spurred by advocacy from victim-survivors like Saxon Mullins, whose protracted and highly published sexual assault case ended with the alleged perpetrator being acquitted despite multiple courts finding that she had not given consent. Since then, Saxon has become part of a growing public campaign for affirmative consent laws. The NSWLRC’s final report, which was released in November 2020, did not recommend this standard. Despite this, in May 2021, NSW Attorney-General Mark Speakman announced a bill that goes beyond the recommendations of the NSWLRC, and will make affirmative consent the law in NSW.
Consent laws in NSW and Victoria
Broadly speaking, if a sexual assault case goes to trial, the state of mind of both the complainant and the accused is relevant to the proceeding. The prosecution must prove that:
- the complainant did not consent; and
- the accused knew that the complainant did not consent.
Currently, in NSW, an accused will be considered to know that the complainant did not consent if they have actual knowledge about lack of consent, if they are reckless as to whether the complainant consents, or if they have no reasonable grounds for believing that the complainant consents.
The test in Victoria is whether the accused reasonably believed that the complainant consented.
In Saxon’s case, although it was found that she did not consent to sex with the accused, the court was not ultimately satisfied beyond reasonable doubt that the accused knew she was not consenting as she froze and did not resist his advances.
Proposed reforms to require affirmative consent
The reforms proposed by the NSW Attorney-General adopt an affirmative model of consent in sexual assault laws, moving from a “no means no” to a “yes means yes” approach to consent. Affirmative consent shifts the emphasis from the actions of the victim-survivor to those of the accused. The NSW reforms alter the statutory language from “no reasonable grounds” to “no reasonable belief” and require a person who argues that they had a reasonable belief in consent to demonstrate what actions they took or what words they spoke to ensure they had consent. If a person failed to take steps to confirm their sexual partner was consenting to engaging in a sexual act, any belief the person had in consent will not be considered reasonable. The reforms are intended to address situations where a person freezes and does not offer physical resistance to sexual activity and make it clear that, in those situations, the person’s consent cannot be assumed.
Importantly, the NSW Attorney-General also tied the reforms to broader shifts in social behaviours. The intent of the reforms is not just to hold perpetrators of sexual harm to account; it is also to set different standards for sexual interactions outside of the criminal justice system. To that end, a campaign educating the legal and broader community on the news laws is expected to occur in the lead up to them being passed.
Is affirmative consent the law in Victoria?
Victoria has historically been viewed as a leader in consent laws. In 1991, the Crimes Act 1958 (Vic) was amended to define consent as “free agreement”, as well as to introduce a non-exhaustive list of consent-negating situations in which a person cannot freely agree (e.g. if the person submits because of force, or the fear of force, to that person or someone else) and jury directions to reinforce the affirmative standard of consent into the law.
However, there are divided opinions about the extent to which Victorian consent laws require affirmative consent. On one view, they fall short of the positive requirement proposed in NSW and should be updated. On another view, the issue lies in the interpretation and application of existing laws by practitioners and judiciary.
Against this backdrop, the Victorian Law Reform Commission is currently reviewing Victoria’s sexual assault laws and is due to report to the Victorian Attorney-General by 31 August 2021.
What does all of this mean for schools?
All Victorian primary and secondary schools currently must comply with Ministerial Order No. 870 – Child Safe Standards – Managing the risk of child abuse in schools (Ministerial Order 870) in order to be registered and remain registered with the Victorian Registration and Qualifications Authority. Ministerial Order 870 requires the school governing authority to develop strategies to deliver appropriate education about healthy and respectful relationships (including sexuality), standards of behaviour for students attending the school, and child abuse awareness and prevention.
In February 2021, former independent school student Chantal Contos launched a petition calling for earlier sex education in schools. The petition, which now has over 40,000 signatures, has revealed hundreds of testimonials from former students in NSW about sexual assault they had experienced at the hands of their peers, particularly (but not exclusively) abuse perpetrated by males at single sex private schools against females. A recent report by the South Australian Commissioner for Children and Young People (CCYP) identified that young people have serious concerns about the adequacy, timeliness and appropriateness of the sex education they are receiving. The young people surveyed by the CCYP stated that they wanted to gain an understanding of the legal framework around consent, and the CCYP’s report recommended that discourse around consent be evidence-based, as well as include an understanding of the social and practical complexities of consent – not just the legal definitions.
We recommend that schools review their education curriculum on consent and respectful / healthy relationships, having particular regard to its quality, appropriateness, accessibility, and timeliness.
We also recommend using affirmative consent as a framework for teaching young people about consent. Whilst the future of Victoria’s consent laws remains uncertain, it is clear that the affirmative consent model is replacing previous social standards and expectations. From a welfare and risk management perspective, adopting an affirmative consent approach reflects best practice for schools seeking to navigate this important issue.
How we can help
Moores delivers education and training to schools and students across Australia on healthy and respectful relationships (including sexuality), standards of behaviour for students attending the school, and child abuse awareness and prevention. For more information or advice, please do not hesitate to contact us.