The Reform
The Victorian Government has made reforms to the way sexual assault charges are dealt with in the courts. These changes have been codified in the
Crimes Act with consent provided for in at
section 36.
The Andrews government has made these changes as a result of the recommendations in a
report released on November 12 last year by the Victorian Law Reform Commission. The
report highlighted that one in five women over the age of 15 has experienced sexual assault and more than 85 per cent of those assaults have not been reported to police, with "many people who have committed sexual assault … not held accountable for their actions".
In the past it has often been the case that the victims’ actions are looked to, to establish that they provided consent. The new changes to the legislation were enacted so that they align more closely with the affirmative consent model, meaning that the onus or responsibility of proving that consent was obtained has been shifted to the accused person. So, it is no longer a defence to allegations to say that the victim did not say no, rather they need to prove that they did say yes.
Furthermore, changes have also been made to prohibit the practice of stealthing. This practice has grown increasingly common whereby one party removes or does not utilise a condom without the others consent. Again, it is now required that an accused person has to prove that the answer to doing such was yes and it is no longer a defence that they did not say no.
Best Practice
The best way to ensure that the issue of consent does not become a problem is to make sure that when engaging with any sexual partner, both new or old, that you have, “loud enthusiastic consent” as best practice.
With the shift in societies attitude to more openly discussing sex in general, the idea or practice of loud enthusiastic consent no longer has the potential to negatively reflect on one’s character.
In Summary
- Consent is voluntary (adding to the existing requirement that consent is freely given);
- Not resisting to a sexual act with a person is not consent;
- Not resisting to another person joining in on a sexual act with the original person is not consent;
- Consent must be “actively and positively expressed by the person giving it” at the instigation of, and throughout the course of, the sexual act;
- Consent is not given in cases of stealthing (this occurs where one person consents to the act on the understanding that a condom is being used and it is intentionally removed before or during sex by the other person);
- Consent is not given where a person is coerced into performing the act, regardless of how the coercion occurs; and
- Consent should be loud and enthusiastic to avoid doubt.
