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Australia’s affirmative consent laws: what you need to know

Australia’s affirmative consent laws: what you need to know

CW: This article deals with sexual assault and may be triggering for some readers. 

If there’s one thing we take seriously, it’s consent. Anything less than an enthusiastic, informed and ongoing “yes” is a straight-up “no”. Unfortunately, our nation’s laws haven’t always reflected this. 

Victoria’s new affirmative consent laws, which come into effect on 30 July 2023, are the latest in a string of amendments across the nation to bring sex offence legislation in line with contemporary community expectations. 

Here’s what you need to know about how the law has changed, and why.

Out with the old 

In the past, most states and territories defined sexual assault by reference to the perpetrator’s knowledge alone. They were only guilty if they knew the victim didn’t consent, were reckless about whether or not they consented, or if there was no reasonable basis to believe they consented. 

Over the past few years, thanks largely to powerful advocates such as Saxon Mullins, Grace Tame and Brittany Higgins, most of Australia’s states and territories have reformed their criminal laws around sexual offences and consent. 

The main focus of these amendments has been the implementation of the affirmative consent model. Several states have also criminalised, or intend to criminalise, the practice of “stealthing” (intentionally removing a condom during sex unbeknownst to the other person). 

In with the new 

Affirmative consent is where a person takes active steps to ensure they have established whether another person wants to have sex before they engage in the act. 

Under an affirmative consent model, the onus is shifted from the victim and what they did to say “no”, onto the accused and what they did to obtain consent. That means that just because a person doesn’t say “no” or “stop” (for example, if they freeze out of fear during an assault) does not mean they consent to sex. 

NSW, ACT, Victoria and QLD

In late 2021, New South Wales was the first to pass laws enacting the affirmative consent model. The Australian Capital Territory followed in 2022, passing laws that stipulate consent is not presumed, and there must be an ongoing and mutual conversation between participants of sexual activities. Similar amendments passed in the ACT, Victoria and Queensland throughout 2022. 

WA, Tasmania and SA 

Before these reforms, Tasmanian law was considered the most progressive. It requires the perpetrator to show that the victim gave a “positive indication” of consent. WA has announced it intends to reform its consent laws, with the Law Reform Commission to provide advice about affirmative consent and stealthing, but SA hasn’t publicly announced an intention to reform its laws. 

What is stealthing and is it illegal? 

Stealthing is the non-consensual tampering, removal, or non-use of a condom during sex. The ACT, Tasmania, NSW and Victoria have now all made it explicit that stealthing is an offence. 

Moving forward 

Hopefully, enacting the affirmative consent model will make a difference for victim-survivors of sexual assault in Australia. Undoubtedly, as a nation we have more work to do towards combatting sexual violence. Whether the recent reforms go far enough is up for debate, but we think they are a step in the right direction.

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