Victorian Attorney-General Jaclyn Symes.

Victorian Attorney-General Jaclyn Symes.Credit:Penny Stephens

Under the changes,consent might include,but would not be limited to,verbally asking and getting a “yes” in response;a physical gesture such as a nod;or reciprocating a move such as removing clothes.

Law Institute of Victoria president Tania Wolff has argued affirmative consent already exists in Victoria and the reforms would complicate the framework.

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The Crimes Act currently defines consent as “free agreement” and sets out a range of scenarios that do not constitute consent. It also states a person’s belief in consent must be reasonable,which includes steps they took to find out whether their sexual partner consented.

Jurors deliberating on sexual offence cases are directed to look at the circumstances and establish if they believe the accused took reasonable steps to attain consent.

Under the reforms,the accused must demonstrate what steps they took,meaning attention will focus on their actions to confirm consent,rather than what the accuser did,or did not do,to deny consent.

Wolff said the government should have focused on community education.

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TheCriminal Bar Association,writing in The Age,has also expressed concerns the reforms could lead to unintended and unfair outcomes.

But Rape and Sexual Research Advocacy chief executive Dr Rachael Burgin said Victoria still had not achieved affirmative consent.

“Ultimately,it’s good to see governments investing in reforms to this area of law that is historically fraught,” she said. “[But] they don’t achieve affirmative consent.”

Burgin said the reforms failed to meet the test of affirmative consent because the new laws did not stipulate that consent be given continuously through words and actions. Victoria and NSW still left consent open to interpretation,she said.

“It mainly tells us what consent is not – it’s not freezing,it’s not not saying no.”

Stealthing – the act of removing protection during sex without consent – will also become a crime.

Regulations on revenge porn and other image-based abuse,such as deepfake porn – where a person’s image is altered to falsely make it appear they are doing something sexual – will also be strengthened.

Attorney-General Jaclyn Symes said the reforms ensured the law matched community expectations.

“Victorians have made it clear there’s no room for victim-blaming and outdated attitudes around sexual violence,” she said.

“These new affirmative consent laws will ensure our justice system keeps up with those expectations.”

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Reform was also akey recommendation from the Victorian Law Reform Commission,which found sexual violence was widespread and under-reported,and victim-survivors needed better protection from trauma when seeking justice.

The Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022 passed the upper house on Tuesday night,with just one vote against from crossbench MP Catherine Cumming.

Ros Spence,the minister for the prevention of family violence,said the reforms would shift the focus from the victim onto the accused.

“This is a crucial step in stopping all forms of violence against women,” she said. “Every Victorian has a responsibility to challenge the harmful behaviours,attitudes and assumptions that lead to sexual violence.”

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