Affirmative Consent Is Now the Rule in Victoria As Sexual Assault Laws Are Overhauled

affirmative consent victoria

Victoria passed some sweeping legislation on Tuesday night that attempts to reframe sexual assault, consent, and a host of other related issues.

The laws basically aim to shift the balance of power toward victim-survivors by making it much easier to prosecute perpetrators of sexual crimes involving consent.

Under the new approach, described in the Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022, the law now takes an “affirmative consent model” whereby a “clear and enthusiastic go-ahead” must be given before engaging in sex.

Ros Spence, Victorian Minister for the Prevention of Family Violence, has said that “this is a crucial step in stopping all forms of violence against women. Every Victorian has a responsibility to challenge the harmful behaviours, attitudes and assumptions that lead to sexual violence”.

“This new standard of consent in Victoria shifts the focus away from the victim and towards the accused and what actions they took to confirm consent.”

Attorney-General Jaclyn Symes has explained that these laws are designed to empower victim-survivors and update the unbalanced legal system when it comes to sexual assault.

“Victorians have made it clear there’s no room for victim-blaming and outdated attitudes around sexual violence – these new affirmative consent laws will ensure our justice system keeps up with those expectations,” she said.

What Are the New Victorian Consent Laws?

The Victorian Government have said that the new legislation has been devised in collaboration with more than 122 victim-survivors, legal institutions, police, and other stakeholders “to ensure that lived experience is at the centre of these reforms to build effective and long-lasting change”.

Specifically, they have updated the definition of consent across a range of legislation dealing with sexual crime to reflect an affirmative consent model. Getting consent no longer means the absence of saying no, which in many jurisdictions is how the law is applied, even if it doesn’t explicitly say that. Victoria has now made it the responsibility of each individual to get consent before engaging in sexual activity.

This can include things like verbally asking for consent, physical gestures like nodding, or reciprocal gestures like removing each other’s clothes. Even with these in place, consent must be considered “reasonably” given. It can’t be a one-and-done thing and the understanding of consent has to be continuous. If, for example, someone says yes to one act, that doesn’t mean they consent to everything.

In addition, the act of stealthing has been made a specific crime. Stealthing is where an individual removes a condom during sex without the consent of the other person. It’s an act that has long been the focus of sexual assault campaigners and was made a crime in the ACT last year.

“By making it crystal clear that stealthing is a crime, we’re not only condemning it but making it easier for victims to realise what’s happened to them — and that it isn’t something to be ashamed of,” Symes said.

Laws have also been strengthened around “image-based sexual abuse”. This means the courts have more power to prosecute individuals who take explicit photos or videos of someone. Distribution of these, or the threat of distribution is another crime that the law specifically targets and, interestingly, this also includes the creation or distribution of ‘deep-fake’ images and videos. Deep-fakes are content that has been edited, often using AI, to make it look like one person is in a photo or video when they aren’t.

Do These Laws Go Far Enough?

The new legislation comes off the back of the Victorian Law Reform Commission’s Improving the Justice System Response to Sexual Offences report.

This report found that sexual violence in Victoria is widespread but frequently doesn’t ever make it to court. This is because victim-survivors often feel shame or embarrassment about what happened, can’t face the legal scrutiny and the real possibility of re-traumatisation, or they simply don’t have faith in the criminal system to be able to prosecute their abuser.

The VLRC report made 99 recommendations for changes to Victorian law, 13 of which have been addressed with this new legislation. The remainder are currently being considered as part of the VIC government’s 10-year strategy to address sexual violence and harm in the state.

Advocates have long said that the law allows too much room for ‘error’ on the part of victim-survivors, often giving the benefit of the doubt to abusers that they hadn’t intended to act maliciously.

However, others argue that Victoria already had an affirmative consent model and these new laws don’t clarify much while again leaving it up to the victim-survivor to decide whether they had done enough to dissent from an act.

“In terms of consent, we need a focus on education rather than more words in a statute,” one campaigner has previously said.

“We would be better advised as a society teaching our young … than upping an imprisonment penalty.”

Rape and Sexual Assault Research and Advocacy Chief Executive, Dr Rachael Burgin, has previously said that the new laws give too much leniency to an accused person to defend their actions.

“These won’t fix the system and they’re not a silver bullet, but it does show the Victorian government is taking positive steps forward. Affirmative consent is not the be-all and end-all. It’s just the beginning of a road to reform,” she said.

Symes recognises that the new legislation is simply a move in the right direction. In her mind, none of this will be solved by a single Act, although it can be improved.

“I’m under no illusion that everyone’s going to love this. But it is great reform and we’ll continue to have conversations as it’s implemented,” she has previously said.

The Victorian Government have said that they will be supporting the new Bill with new jury directions to “address misconceptions in sexual offence trials” and reforms to protect the information of victim-survivors.

“These reforms will be supported by community-based education delivered by local organisations and specialist services”, they say, which will start to roll out in September.

The news legislation will come into effect from July next year.

Related: She Did It: Chanel Contos’ Consent Education Campaign Accepted by Education Ministers

Related: What Exactly Defines ‘Active Consent’ in Sexual Activity?

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