The article Affirmative Consent is written by Cassandra Knight-Grull, Lawyer, Doogue + George Defence Lawyers.
Cassandra holds a Juris Doctor from RMIT University and a Bachelor of Arts with Honours from Monash University. She was previously a research assistant to criminal barristers at Crockett Chambers where she dealt with indictable offences in Victoria, Tasmania, and Queensland.
Cassandra has also volunteered at Youthlaw and the Neighbourhood Justice Centre as well as the Sex Worker Education and Advocacy Taskforce in Johannesburg, South Africa.
In late 2021, when it seemed like questions of consent were everywhere – consent to vaccines, to mask-wearing, to QR codes – a series of consent law reforms were being discussed in government.
The Victorian Law Reform Commission (VLRC) released its ‘Improving the Justice System Response to Sexual Offences Report’ on November 12, and the Victorian Government shortly after pledged to adopt several of its recommendations, including the introduction of an ‘affirmative consent’ model. This was designed to improve a number of issues under the current system, such as low conviction rates and the re-traumatising impact of the court process on complainants. Draft legislation introducing this change finally made its way into Parliament earlier this month.
How does consent operate in Victorian criminal law?
The absence of consent, generally defined as ‘free’ or ‘free and voluntary’ agreement, is a key element to be proved in most sexual offences. Victoria’s current laws are characterised by a ‘communicative model’ of consent, where a person is not taken to consent if they do not say or do anything to indicate agreement. The model emphasises that consent is not passive, internal or assumed, but is something that must be given, freely and on an ongoing basis.
However, for most sexual offences, the absence of consent forms just one part of the offence. For example, to be convicted of rape in Victoria it must also be proved that an accused did not reasonably believe that the complainant was consenting. In theory, the test of reasonable belief ensures that there is a defined measure of culpability on the part of someone charged with rape. In other words, it requires a ‘guilty mind’ – some sign of non-consent that an accused has unreasonably ignored or overlooked.
What is the affirmative consent model?
An ‘affirmative consent model’ places an onus on each person participating in a sexual act to seek consent actively and continuously from the other person, rather than rely on the other person to provide this consent. In the event of a rape charge, the focus of the court is then re-positioned on what an accused did to seek out or clarify consent, rather than what the victim did to deny consent. This removes the possibility that consent can be assumed.1 Under Victoria’s amendment to section 36A of the Crimes Act 1958, an accused would therefore bear the burden of proving on the balance of probabilities that their belief in consent had been reasonable.
Concerns around the new model
The affirmative consent model represents an attempt to have the law better reflect modern standards of sexual behaviour, which now expect sexual consent to be more than just ‘free’ and ‘voluntary’ but also continuous, active, and enthusiastic. However, the implementation of Victoria’s reforms is certainly not without flaws.
For instance, there is some uncertainty around whether the adjusted language is really necessary. Victoria’s current consent laws already feature many of the same elements as an affirmative consent model. Evaluating what steps an accused took to clarify consent already forms an important part of a jury’s assessment of whether their belief was reasonable. In fact, the legislation is clear that a belief in consent cannot be reasonable if the accused does not say or do anything to find out whether the other person consents.
There is also concern that the draft legislation confuses, if not inverts the criminal burden of proof. One of our justice system’s long-standing principles is that an accused is innocent until proven guilty and has no obligation to lead evidence to prove that innocence. Reasonable belief is an element of the offence, not a defence, and would traditionally be a matter for the prosecution to establish. This has implications for an accused’s right to a fair trial.
Another legitimate question is whether it is truly appropriate, putting aside the goals of the legislation, to try to improve sexual behaviour through increased criminalisation. Experience dictates that this kind of nuanced change in the law tends to criminalise individuals with low legal literacy or young people who are sexually inexperienced, the implications of which can be incredibly serious.
The general deterrent effect of a law extends only as far as the public’s knowledge of it, which is why using legislation to change social standards can be problematic. This is especially the case where law reform also stifles the ability of the court to recognise nuance, such as in the case of mandatory sentencing.
It’s important to note that alongside its recommendation for law reform, the VLRC report equally recommended wide consultation and broad community education and programs to support any changes. Without a robust educational campaign to reinforce the change in legislation, a new consent model will do nothing to reduce the number of offences committed, but it will certainly clog up the court system with new offenders. It is hoped that the new model might create an incentive for greater engagement with and investment in education around consent.
 Rachael Burgin and Asher Flynn, ‘Women’s Behaviour as Implied Consent: Male “Reasonableness” in Australian Rape Law’ (2021) 21(3) Criminology & Criminal Justice 334, 335.
Date Published: 31 August 2022