Victorian affirmative consent laws
What are the new affirmative consent reforms?
The Victorian government has introduced new reforms that provide key changes to consent laws under the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022. These legislative reforms were made in response to the Victorian Law Reform Commission report, Improving the Justice System Response to Sexual Offences, and decades of campaigning from advocates.
The reforms aim to place a greater focus on the actions of persons using sexual violence to seek consent, rather than just on what victim survivors did or did not say or do.
These changes include:
Inclusion of non-consensual condom tampering or removal, ‘stealthing’ as a sexual offence.
Improvements to the justice system to better protect victim survivors, including increased education and direction for members of a jury to understand sexual violence.
These reforms will come into effect on 30 July 2023.
You can read more below about how the law is changing and how you can start to have conversations with family, friends and others in your community.
Disclaimer: The information below is intended as a general overview only. The contents do not constitute legal advice, are not intended to be substitute for legal advice and should not be relief upon as such.
Sexual consent
Sexual consent is to agree to engage in any type of sexual activity. Consent must be sought and given by all people involved freely and voluntarily. No one should feel forced, coerced or threatened.
Consent is not limited to sexual penetration, it also includes oral sex, sexual touching and any other behaviour of a sexual nature.
Giving consent to one sexual act does not mean that someone is agreeing to all types of sex, e.g. consenting to kissing does not mean someone consents to vaginal sex.
What is the affirmative consent model?
Affirmative sexual consent places the responsibility on each individual person participating in a sexual act to take steps to say or do something to check that the other person(s) involved are consenting to a sexual activity, rather than rely on the other person to give their consent. This means that sexual consent can never be assumed and involves ongoing and mutual communication and decision-making between each person involved.
Every person has the right to change their mind and withdraw consent at any time before or during sexual activity.
Reasonable belief in consent
Prior to these reforms, when determining whether consent was given, the courts have relied on the belief of the person accused of sexual assault and whether their belief was reasonable.
Under the new reforms, a belief in consent is not reasonable if, within a reasonable time before or at the time the sexual act takes place, the person does not say or do anything to find out whether the other person(s) consents.
This is intended to place a greater focus on the actions of the person using sexual violence to seek consent rather than just on what the victim survivors did or did not say or do.
Circumstances where there is no consent
The new reforms include additions to the list of legislative circumstances where a person cannot give consent. These are intended to better recognise the diverse range of factors that can impact a person’s ability to freely and voluntarily agree to sexual activity.
Under these changes, a person cannot consent if they submit due to:
Force, harm or fear of force or harm of any type.
Coercion or intimidation.
Abuse of a relationship of trust and authority.
False or misleading representation about payment for commercial sexual services.
Intentional non-use, removal or tampering of a condom without consent (‘stealthing’).
Changes to image-based sexual abuse laws
Image-based sexual abuse involves someone sharing or threatening to share an intimate photo or video of a person without their consent. This can happen in person or online.
The definition of ‘Intimate image’ has now expanded to include digitally created images where the image is generated, manipulated or altered to appear to depict someone and to better apply to gender diverse victim survivors.
The definition of Intimate Image is now:
A person engaged in a sexual activity.
A person in a sexual context.
The genital or anal region of a person, both bare and covered by underwear.
The breasts of a person, if the person is female, including a transgender or intersex person who identifies as a woman.
The intimate image may be a still image, a video, recorded and unrecorded. It does not have to be a real image, it may be a drawing or cartoon, or digitally generated, manipulated or altered.
The offence will also be moving from the Summary Offence Act to the Crimes Act. This means that there will be a new higher maximum penalty of three years imprisonment to reflect the serious and harmful impacts of sharing a person’s intimate images without their consent.
If you decide to share an intimate image or video of yourself with one person, it does not mean that you have given permission for them to share it with anyone else or show it to other people.
Additionally, if you are under 18 years of age, you cannot legally consent to the production or distribution of an intimate image. It is against the law for people to access, make, share, request, or possess intimate images that show someone who is under 18 in a sexual context.
What’s next?
SASVic welcomes these reforms to consent and sexual offence laws.
For now, it is unknown how the new legislation will be used and interpreted by the Victorian justice system once the reforms come into effect. However, there is significant potential for the new laws to help drive education and change in community attitudes and norms in relation to sexual violence and consent.
And importantly, this should be just the first step in a range of reforms needed to tackle sexual violence and ensure that all victim survivors have a clear path to justice and therapeutic support.
What can you do?
Individuals and organisations should consider how these legislative changes will impact their work and approach to sexual assault prevention and education in the community.
You can also raise awareness of the new reforms coming into affect by sharing this information on social media and within your organisation.
For more information and support
Find your closest specialist sexual assault service in Victoria.
If you have experienced a recent sexual assault or need after-hours help, please call the Sexual Assault Crisis Line on 1800 806 292.