The laws surrounding consent in the state of Victoria have undergone significant amendment in the last decade,particularly by reforms introduced in 2015 and 2017. These changes have recognised the many circumstances in which a person cannot consent,for example,if they are asleep or if they withdraw their agreement to a sexual act.
Further,to prove an accused’s guilt,the prosecution need only to prove that they did not “reasonably believe” that the complainant was consenting. A genuine,if unreasonably held,belief in consent is not a defence. An accused who gave no thought to whether the other person was consenting has no defence.
This suite of reforms also limited the circumstances that can lead to a reasonable belief. An accused cannot rely on a complainant’s lack of protest or physical resistance as a reasonable basis for believing the complainant was consenting. Similarly,intoxication or cultural and religious beliefs cannot be relied upon;and a complainant is taken to not be consenting if they are significantly intoxicated.
These changes to consent laws were complemented by amendments to the mandatory directions that are given to the jury by the presiding judge during a trial. In these statements,the presiding judge instructs the jury as to how they are to consider a defence of consent. Paramount in such cases is a direction that “people who do not consent to a sexual act may not protest or physically resist the act,for example,the person may freeze and not do or say anything”.
The Criminal Bar Association recognises that these past reforms have made sexual offence law more robust and that this reflects the changing social standards within our community. Indeed,these many changes reflect and promote the principles of affirmative consent. It is with that understanding that the new provisions need to be assessed.
The changes contained in last week’s bill take these laws one step further,requiring people to take active steps to ascertain the consent of the other party (or parties) before engaging in sexual activity – exempting only those who can prove that a mental illness or cognitive impairment made this more difficult.