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Content warning: This article discusses sexual assault in a way that may be distressing to some readers.
There have been some promising changes to sexual consent reforms in Australia recently, marking a major win for victim-survivors of sexual assault. Affirmative consent laws were passed in the New South Wales parliament on Tuesday, and similar laws proposed in Victoria earlier this month.
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The NSW reforms not only aim to simplify sexual consent laws but ensure more effective prosecutions of sexual offences. If a person does not obtain affirmative consent, they could be found guilty of sexual assault.
Under the new laws, a person who wants to engage in sexual activity with someone must do or say something to find out if the other person wants to have sex with them too, in order to have a reasonable belief that they in fact consented to sex.
"The NSW Government's affirmative consent model sets clearer boundaries for consensual sex, reinforces the basic principle of common decency that consent is a free choice involving mutual and ongoing communication, and reinforces that consent should not be presumed," NSW Attorney-General and Minister for Prevention of Domestic Violence Mark Speakman said in an official statement.
The push to pass the affirmative consent laws was prompted by Saxon Mullins, a victim-survivor whose case saw the accused person's conviction overturned because the court said he didn't know Mullins hadn't consented.
Earlier this month, Victoria's government said it will introduce a similar requirement for affirmative consent and will also amend laws to make 'stealthing' – where someone removes a condom during sex without their partner’s knowledge or consent – explicitly illegal.
For a long time, consent has been a hazy area in the eyes of the law. Here's a breakdown of what these new reforms mean.
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What Has Changed?
Michael Bradley, Managing Partner at Marque Lawyers in Sydney explains that the new laws in NSW replace the previous provisions in the NSW Crimes Act dealing with consent in the context of sexual assault.
The most significant changes to the law are:
– It now explicitly says that consent can be withdrawn at any time, and consent to one act is not consent to another;
– A person does not consent to a sexual activity if they don’t say or do anything to communicate it - that is, without positive communication, there is no consent (i.e. it can’t be assumed); and
– If the alleged victim did not consent, but the accused person honestly believed that they did, that belief is not reasonable if they didn’t say or do anything to find out whether there was consent.
⚖️ #AffirmativeConsent reforms have now passed both Houses.
— Mark Speakman (@MarkSpeakman) November 23, 2021
⚖️ I thank victim-survivors, peak bodies, frontline services, legal experts, academics, + those in the criminal justice system for their thorough + thoughtful engagement. I particularly thank survivor @SaxonAdair. pic.twitter.com/jCYjXaNprb
"The last one is tricky to understand," says Bradley. "In a rape trial, the prosecution has to prove that the accused person either knew there was no consent, or was reckless about it (didn’t care), or, if they honestly believed there was consent, that belief wasn’t reasonable.
"The big change is that, unless they asked the victim whether they consented, the belief is now deemed to have been unreasonable."
Why Is It Called Affirmative Consent?
Affirmative consent means that consent is not only actively sought, but actively communicated as well.
Bradley says the new laws put the onus on the accused to ensure the other person consents "rather than just assuming they do and being able to get away with that if they turn out to be wrong."
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Mullins, the director of advocacy at Rape and Sexual Assault Research and Advocacy, was sexually assaulted behind a Sydney nightclub in 2013 and subsequently involved in a four-year legal battle including two trials and two appeals.
Her alleged rapist was acquitted on the basis that the prosecution couldn’t prove that his belief (that she consented) was unreasonable, where the evidence indicated that he never asked her.
Not sure if I want to cry, dance, or drink champagne. Think I’m going to do a combination of all three.
— Saxon Mullins (@SaxonAdair) November 23, 2021
Mullins says the introduction of the affirmative consent laws "shifts that old notion of ‘no means no’ to ‘yes means yes’, making sure that people understand there is no assuming someone’s consent."
"Affirmative consent becoming law also has the trickle-down effect of people now learning what affirmative consent means, and that it’s incredibly simple," she tells Refinery29 Australia.
It's been a tumultuous journey for the 26-year-old as she's campaigned for the reforms alongside legal experts, academics and other victim-survivors.
"After so much time, work, and effort put in by so many survivors and experts, it just feels right," she reflects on Tuesday's landmark moment. "There were definitely times along this journey that it seemed like we wouldn’t get this outcome, but I’m so pleased that it has turned out this way."
Is Stealthing Now A Crime in Victoria?
In Victoria, the proposed adoption of an affirmative consent model means changes to the Crimes Act 1958 (Vic). Again, a person must confirm they have received consent, but the state is also introducing another law that makes it explicit that stealthing is a crime.
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It’s an honour to stand with @VicLawReform, @GabbyWilliamsMP and @GeraldineBilst1 to announce we will adopt an affirmative consent model & criminalise stealthing.
— Jaclyn Symes (@JaclynSymes) November 12, 2021
This review is a roadmap to change the system for victim-survivors & help them seek justice. pic.twitter.com/NpIOs2Fui1
"[Stealthing] a heinous act which negates consent,” Elizabeth Lee MLA, Leader of the Canberra Liberals previously told Refinery29 Australia. “Sex without consent is sexual assault and sexual assault is a crime.”
Last month the ACT has become the first jurisdiction to criminalise stealthing in Australia.
Melbourne-based lawyer and President-Elect of the Law Institute of Victoria Molina Asthana says that Victoria's decision to adopt an affirmative consent model and criminalise stealthing is extremely important and well overdue.
"The biggest roadblock [for survivors] has been the burden of proof on the victim in relation to consent," says Asthana.
"The nature of the circumstances leading to sexual assault (usually in private with no witnesses) makes it difficult for the victim to prove lack of consent as there are no witnesses and it’s the word of the victim against the accused.
With the onus now on the accused to prove that there was consent, the victim will be saved from going through a long and arduous trial of proving consent which also has a significant mental health impact on the victim-survivor."
So What's Next?
The NSW reform package includes five new jury directions to address common sexual assault misconceptions, research into victim-survivor experiences and community awareness programs.
The government says targeted education programs will also be carried out for judges, legal practitioners and police ahead of the laws commencing in mid-2022.
In Victoria, the government will deliver a $5.2 million funding boost to specialist sexual assault services and "consult extensively with victim-survivors, law enforcement agencies, the courts and other stakeholders in developing legislation" underpinning these reforms that will then be introduced in 2022.
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As the National Vice President of the Asian Australian Lawyers Association, Asthana highlights the importance of an intersectional approach being put in place when educating the legal profession about the changes.
"It will be important for the government to also engage with lawyers from CALD (culturally and linguistically diverse) community backgrounds so that they are able to create awareness amongst their communities," she explains.
While these are progressive steps being taken in NSW and Victoria, Mullins insists that reform needs to be implemented across the board.
"I definitely want all states in Australia to adopt affirmative consent laws and we’ll be taking our fight there for sure," she says.
"My colleague Professor Jonathan Crowe has been working in the Queensland space for a long time, alongside Bri Lee, so it would be great to see them introduce affirmative consent laws. We’re definitely not stopping until we’ve got them all!"
Along with legal reform comes wider education, an area that needs significant attention in Mullins' eyes.
"Our other main focus is ensuring our education system implements comprehensive relationship and sexuality education, teaching people how to engage in healthy relationships."
If you or anyone you know has experienced sexual or domestic violence and is in need of support, please call 1800RESPECT (1800 737 732), the National Sexual Assault Domestic Family Violence Service.
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