Sexual Consent Law Reform - Public Comment

21 June 2021

A new model of consent for sexual activity - based on free and voluntary agreement – is being considered for enactment into ACT law.

The ACT community and stakeholders have requested law reform to introduce a communicative model of consent in the ACT.

I've developed a draft Bill to respond to those requests and concerns, amending the ACTs Crimes Act 1900.

The proposed amendments would shift the current legislation from the point of sexual assault being a violent act, to a much more nuanced and defined set of parameters around what consent is and is not, in line with contemporary community expectations.

An Exposure Draft of the Bill is available for public comment until COB Friday 16 July.

The Bill:

  1. outlines the principles of consent – every person has a right to choose whether or not to participate in a sexual act, and it involves ongoing and mutual communication, decision-making and free and voluntary agreement between the people participating;
  2. provides a meaning of consent – freely and voluntarily saying or doing something to communicate agreement to the act, at the time of the act;
  3. clearly articulates a set of circumstances under which consent is not deemed given. This is a non-exhaustive list that has been updated from the current Crimes Act 1900; and
  4. introduces the concept of reasonable belief – the current legislation provides that an accused person is guilty of an offence if they know another person does not consent to a sexual act, or are reckless as to consent. These are subjective standards. This Bill will introduce the principle that any belief an accused person may hold about another person’s consent must be reasonable under all the circumstances, according to an objective standard. In cases where an accused person does nothing to ascertain another person’s consent, they will not be able to rely on a defence of genuinely but mistakenly having believed the other person consented.

In 2018, similar amendments were considered by the ACT Government, with an Inquiry held by the Standing Committee on Justice and Community Safety.

I have undertaken a detailed review of each of the submissions made by a wide range of stakeholders in 2018, and the ACT Government’s response to the Inquiry. In proposing legislative amendments for the ACT, I have taken these views into account, as well as the NSW Law Reform Commission’s Report ‘Consent in relation to sexual offences’ and relevant legislation in other jurisdictions.

I’m proposing to introduce a communicative model of consent whereby the principle, meaning and definition of consent is shifted – from something that is presumed and can be negated, to something that is unassumed and must be given. 

The proposed changes provide a clear definition that – where a person does not say or do something to communicate consent (verbally or non-verbally), or if a person withdraws consent – this is not consent.

The proposed changes also introduce a new test for the prosecution of an accused person, whereby their belief that consent was given must be deemed to be reasonable in the circumstances.

I believe that the proposed legislative changes, which will bring the ACT in line with other Australian jurisdictions including Tasmania and Victoria, will provide greater protection and justice for victim-survivors of sexual assault, as well as helping prevent incidents of sexual assault in the ACT.

I welcome input and comment on the Exposure Draft of the Bill by COB Friday 16 July.

Following the close of public consultation, I will review and analyse all comments provided and make any edits or revisions, as appropriate, before the Bill’s finalisation and introduction to the Assembly. I anticipate this will occur later this year

 

This work will have input from, and be overseen by, the ACT Government’s Sexual Assault Prevention and Response Program, particularly the Law Reform Working Group, to ensure coordination in the broader context of cultural and educative change across all groups within our community. The program has been established by Ms Yvette Berry MLA, Minister for Women.

 

You can view the following documents here:

 

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Support

If you or anyone you know needs support, please contact the National Sexual Assault, Domestic and Family Violence Counselling Service on 1800 RESPECT (1800 737 732), available 24 hours or via online chat service at https://www.1800respect.org.au/

Domestic Violence Crisis Service ACT Ph 62 800 900, 24/7 crisis line

Canberra Rape Crisis Centre Ph 6247 2525, 7 days a week, 7:00am to 11:00pm

ACT Human Rights Commission Victim Support ACT Ph 6205 2222 Mon-Fri, 9:00am to 5:00pm.

Women's Legal Centre ACT Ph 6257 4377, Mon-Fri, 9:00am to 5:00pm.

1800RESPECT (1800 737 732), 24 hours, 7 days a week, for those impacted by sexual or domestic violence

Legal Aid ACT Helpline Ph 1300 654 314, Mon-Fri, 8:30am to 4.30pm