Affirmative Consent Laws Pass Victorian Parliament
Wednesday 7 September 2022 @ 11.55 a.m. | Crime | Legal Research
On 4 August 2022, the Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022 (Vic) (“the Bill”) was introduced by Minister for Corrections, Sonya Kilkenny (“the Minister”) in the Victorian Legislative Assembly. The Bill passed both houses of Parliament with no amendments on 20 August 2022.
The Bill received Royal Assent on 6 September 2022, and the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 (Vic) ("the Act"), has since partially commenced.
The New Affirmative Consent Model
In the Bill’s initial Second Reading Speech, the Minister commented that:
“The reforms in this Bill will deliver critical improvements to the way in which justice is delivered for those who are the victim of sexual violence. It will strengthen our sexual offence laws, provide additional protections for victim-survivors, and ensure that those who perpetrate sexual abuse are held to account for their actions.”
Most notably, the Act introduces a new affirmative consent model. In line with this model, the Act amends section 36 of the Crimes Act 1958 (Vic) ("the Crimes Act") to define ‘consent’ to mean ‘free and voluntary agreement’.
The new laws also make it clear that a person does not consent merely because they do not resist verbally or physically, or if they previously consented to the same or a different act with the same or a different person. This means that before a person can have a reasonable belief in consent, that person needs to take active steps to determine if there is consent.
The Minister further explained in her Second Reading Speech that these reforms will:
“…put greater focus on the accused person’s actions in sexual offence trials, rather than focusing on what the victim-survivor did to indicate they did not consent.”
The new laws will also expand on the circumstances in which a person does not consent. This means that:
- the non-consensual removal, non-use or tampering of a condom;
- force, harm or fear of force or harm of any kind;
- coercion or intimidation;
- abuse of a relationship of authority or trust; and
- false or misleading representations about payment for commercial sexual services;
will now be consent-vitiating circumstances.
In addition to these amendments, the Act also:
- transfers offences relating to the non-consensual creation and/or sharing of intimate images from the Summary Offences Act 1966 (Vic) to the Act, and makes these offences punishable by a maximum penalty of 3 years’ imprisonment; and
- makes changes to jury directions in sexual offence trials, including introducing new directions addressing common misconceptions about sexual violence.
In a recent Media Release issued on 31 August 2022, the Attorney General Jaclyn Symes was relevantly quoted as stating that:
“Victorians have made it clear there’s no room for victim-blaming and outdated attitudes around sexual violence – these new affirmative consent laws will ensure our justice system keeps up with those expectations.”
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Sources:
Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 (Vic), and originating Bill, media release, and additional explanatory material available from TimeBase’s LawOne Service
Media Release: Affirmative Consent Model Now Law in Victoria (Premier of Victoria, 31 August 2022)
