The ACT Legislative Assembly has passed new affirmative consent laws.
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The change represents a significant reform to the ACT's justice system and comes after a scathing report of the territory's responses found victim-survivors in the ACT are faced with a system that fails to meet their needs.
The bill was put forward by Labor backbencher Marisa Paterson.
What is affirmative consent?
Affirmative consent means that consent for sexual activity is actively sought and actively given based on free and voluntary agreement between the parties involved.
Under the existing model in ACT law, consent laws are based around a "no means no" model.
In cases of sexual assault, this model means victims must prove they did not give consent.
Affirmative consent, which is a "yes means yes" model, means a person must seek consent and there will be a new legal test under the changes to determine this.
How does the new bill define consent?
The bill defines consent as "informed agreement to the sexual act that is freely and voluntarily given and communicated by saying or doing something".
What are the principles of consent in the bill?
There are principles of consent that are outlined in the bill, these are:
- Consent to participate in a sexual act are not to be presumed
- Every person has a right to choose not to participate in a sexual act
- A consensual act involves ongoing and mutual communication and decision-making by the people participating in the sexual act
What are the new prosecution standards?
In cases where an accused does nothing to ascertain a person's consent, they would not be able to rely on a defence they had believed the other person had consented.
The new test for the prosecution of an accused person would be introduced in which their belief that consent was given must be deemed to be reasonable in the circumstances. The onus of proof for this test is the responsibility of the court system.
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When is consent not given?
The legislation makes it explicitly clear that consent is not given in a range of circumstances, including when someone:
- Says or does something to communicate withdrawing agreement to the act either before or during the act
- Participates in the act because of the infliction or threat to inflict violence or force on the person, or another person, an animal or property
- Participates in the act because of extortion, coercion, blackmail, intimidation or a fear of public humiliation or disgrace of the person or another person
- Participates in the act because of force or fear
- Is incapable of agreeing to the act because of intoxication
- Is mistaken about the identity of the other person
- Participates in the act because of an intentional misrepresentation by another person about the use of a condom
- Participate in the act as a result of an abuse of relationship of authority or professional relationship
- Does not have the capacity to agree to the act because they are unconscious, are asleep or are unlawfully detained or know that another person is unlawfully detained
The changes also make it clear that a person does not consent to an act because they do not do or say something to resist the act.
It also clarifies that a person does not consent to an act if they had previously consented to another act with that person, or had previously consented to the same act with that person.
The list is not exhaustive as there are other circumstances where consent may not be given which can be determined in any sexual assault trial.
The bill also recognise a "freeze and surrender" approach in sexual assaults.
When do the laws come into effect?
The new laws will come into place on the day after its notification on the ACT's legislative register.
The changes will not be retrospective, meaning it won't apply to existing cases or offences committed before this date.
- Lifeline 13 11 14
- Canberra Rape Crisis Centre: (02) 6247 2525
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Lucy Bladen
Lucy Bladen has been a journalist at The Canberra Times since 2019. She is an ACT politics and health reporter. Email: l.bladen@canberratimes.com.au
Lucy Bladen has been a journalist at The Canberra Times since 2019. She is an ACT politics and health reporter. Email: l.bladen@canberratimes.com.au
