On 12 November 2021, the Victorian Law Reform Commission (VLRC) released its report entitled “Improving the Response of the Justice System to Sexual Offences” (the Report). The VLRC has produced a comprehensive reform package to improve the way the justice system responds to sexual offences. Multiple recommendations were made in the report, many of which have been accepted by the Victorian government.
In this article, we discuss the VLRC’s recommendation that Victoria adopt a model of “affirmative consent” and explicitly criminalise stealthing, and what this means for schools, as well as other organisations working with children, young people and other vulnerable people.
This is the third in a series of articles by Moores about the VLRC’s Report. Click here for an overview of the Report’s recommendations and here for guidance to organisations on facilitating reporting of sexual abuse.
What has the VLRC recommended?
The VLRC has recommended that the Victorian Government review the definition of consent under section 36 of the Crimes Act 1958 (Vic) (the Crimes Act) and the fault element of “no reasonable belief in consent” under section 36A of the Crimes Act with the aim of moving towards a stronger model of affirmative consent.
In doing so, Victoria’s consent laws will fall into line with those in New South Wales (who passed affirmative consent legislation last year) and Tasmania. The Australian Capital Territory has also committed to introducing such legislation, whilst a review of Western Australia’s consent laws was announced earlier this year.
The VLRC has recommended that the Victorian Government should:
- formulate a requirement for a person to ‘take steps’ to find out if there is consent;
- consult widely with members of communities and stakeholders;
- deliver training and education for people working in the criminal justice system on the reforms; and
- deliver community education and programs on the reforms.
The VLRC has also recommend that section 36(2) of the Crimes Act be amended to include a new circumstance in which consent is not given by a person where, having consented to sexual activity with a device to prevent sexually transmitted infections or contraceptive device, the other person does not use, disrupts or removes the device without the person’s consent. The effect of this amendment would be to make explicit that such action, colloquially known as “stealthing”, is a crime.
The Victorian Government has committed to implementing these changes, and legislation to give effect to these reforms is expected this year.
What do consent laws in Victoria currently require?
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 did not reasonably believe that the complainant was consenting.
Section 36(1) of the Crimes Act provides that consent means “free agreement”. Section 36(2) outlines a non-exhaustive list of circumstances in which a person does not consent to an act. Section 36(2)(l) (as well as section 34C(2)(k)) state that a person does not consent if “the person does not say or do anything to indicate consent to the act”.
Section 36A(1) of the Crimes Act provides that whether or not a person reasonably believes that another person is consenting to an act depends on the circumstances. Section 36A(2) provides that the circumstances include any steps that the person has taken to find out whether the other person consents the act.
These provisions are said to codify what has been termed the “communicative model” of consent, and requires communication of consent. However, the current model falls short of imposing a positive requirement for a person to take steps to find out if there is consent.
What do the recommendations mean for schools?
All primary and secondary schools will be required to comply with the new Ministerial Order 1359 (MO 1359) which replaces Ministerial Order 870 (MO 870) and comes into effect on 1 July 2022. MO 1359 goes beyond the requirements of MO 870, effectively supercharging the requirement for schools and school boarding premises to create strategies to promote child empowerment and participation.
Specifically, clause 7 requires the school governing authority and school boarding premises governing authority (where relevant) to ensure students are offered access to sexual abuse prevention programs and to relevant related information in an age-appropriate way.
We recommend that schools review their education curriculum on consent, having particular regard to its quality, appropriateness, accessibility, and timeliness. Further, although the laws on affirmative consent are yet to be introduced, we recommend that schools start to use affirmative consent as a framework for teaching young people about consent, if they are not doing so already.
What do the recommendations mean for organisations working with vulnerable people?
Organisations working with children and vulnerable people, should ensure they provide education in relation to legislative amendments on affirmative consent when enacted, and promote the empowerment of vulnerable people within the organisation.
This is especially relevant for Disability Service Providers. The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with a Disability (the Disability Royal Commission) has provided alarming information in relation to the horrendous abuse of people with a disability. The Disability Royal Commission found that women with a disability were almost twice as likely to experience sexual abuse than women in the general population.
The NDIS Code of Conduct requires workers and providers who provide NDIS supports to take all reasonable steps to prevent and respond to sexual misconduct. A vital part of preventing sexual misconduct in many organisations is through education and the empowerment of those connected to the organisation. It is also critical that organisations have appropriate complaint handling processes to respond to allegations of sexual misconduct and limit barriers to reporting.
How we can help
Moores can offer a variety of services to assist organisations to safeguard children and vulnerable people. Some of the services we offer include:
- Delivering training and education to schools and organisations working with children and vulnerable people.
- Audit and gap analysis of documentation and implementation of organisational policies and procedures in relation to safeguarding.
- Preparation of policies and procedures and advice on implementation across the organisation.
- Supporting organisations to respond appropriately to allegations of sexual misconduct, including through the conduct of independent and trauma-informed investigations and compliance with legislative reporting schemes.
- Assisting organisations to comply and promote best practice in safeguarding.
Contact us
Please contact us for more detailed and tailored help.
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