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Affirmative consent in sexual offences – Crime



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In late 2021, when it seemed like questions of consent were
everywhere – consent to vaccines, to mask-wearing, to QR codes – a
series of consent law reforms were being discussed in
government.

The Victorian Law Reform Commission (VLRC) released its ‘Improving the Justice System Response to
Sexual Offences Report’
on November 12, and the
Victorian Government shortly after pledged to adopt several of its
recommendations
, including the introduction of an
‘affirmative consent’ model. This was designed to improve a
number of issues under the current system, such as low conviction
rates and the re-traumatising impact of the court process on
complainants. Draft legislation introducing this change finally
made its way into Parliament earlier this month.

How does consent operate in Victorian criminal law?

The absence of consent, generally defined as ‘free’ or
‘free and voluntary’ agreement, is a key element to be
proved in most sexual offences. Victoria’s current laws are
characterised by a ‘communicative model’ of consent, where
a person is not taken to consent if they do not say or do anything
to indicate agreement. The model emphasises that consent is not
passive, internal or assumed, but is something that must be
given, freely and on an ongoing basis.

However, for most sexual offences, the absence of consent forms
just one part of the offence. For example, to be convicted of rape in Victoria it must also be proved that
an accused did not reasonably believe that the complainant
was consenting. In theory, the test of reasonable belief
ensures that there is a defined measure of culpability on the part
of someone charged with rape. In other words, it requires a
‘guilty mind’ – some sign of non-consent that an accused
has unreasonably ignored or overlooked.

What is the affirmative consent model?

An ‘affirmative consent model’ places an onus on each
person participating in a sexual act to seek consent
actively and continuously from the other person, rather than rely
on the other person to provide this consent. In the event of a rape
charge, the focus of the court is then re-positioned on what an
accused did to seek out or clarify consent, rather than what the
victim did to deny consent. This removes the possibility
that consent can be assumed.1 Under Victoria’s
amendment to section 36A of the Crimes Act 1958, an
accused would therefore bear the burden of proving on the balance
of probabilities that their belief in consent had been
reasonable.

Concerns around the new model

The affirmative consent model represents an attempt to have the
law better reflect modern standards of sexual behaviour, which now
expect sexual consent to be more than just ‘free’ and
‘voluntary’ but also continuous, active, and enthusiastic.
However, the implementation of Victoria’s reforms is certainly
not without flaws.

For instance, there is some uncertainty around whether the
adjusted language is really necessary. Victoria’s current
consent laws already feature many of the same elements as an
affirmative consent model. Evaluating what steps an accused took to
clarify consent already forms an important part of a jury’s
assessment of whether their belief was reasonable. In fact, the
legislation is clear that a belief in consent cannot be
reasonable if the accused does not say or do anything to find out
whether the other person consents.

There is also concern that the draft legislation confuses, if
not inverts the criminal burden of proof. One of our justice
system’s long-standing principles is that an accused is
innocent until proven guilty and has no obligation to lead evidence
to prove that innocence. Reasonable belief is an element of the
offence, not a defence, and would traditionally be a matter for the
prosecution to establish. This has implications for an
accused’s right to a fair trial.

Another legitimate question is whether it is truly appropriate,
putting aside the goals of the legislation, to try to improve
sexual behaviour through increased criminalisation. Experience
dictates that this kind of nuanced change in the law tends to
criminalise individuals with low legal literacy or young people who
are sexually inexperienced, the implications of which can be
incredibly serious.

The general deterrent effect of a law extends only as far as the
public’s knowledge of it, which is why using legislation to
change social standards can be problematic. This is especially the
case where law reform also stifles the ability of the court to
recognise nuance, such as in the case of mandatory sentencing.

It’s important to note that alongside its recommendation for
law reform, the VLRC report equally recommended wide consultation
and broad community education and programs to support any changes.
Without a robust educational campaign to reinforce the change in
legislation, a new consent model will do nothing to reduce the
number of offences committed, but it will certainly clog up the
court system with new offenders. It is hoped that the new model
might create an incentive for greater engagement with and
investment in education around consent.

Footnote

1 Rachael Burgin and Asher Flynn, ‘Women’s
Behaviour as Implied Consent: Male “Reasonableness” in
Australian Rape Law’ (2021) 21(3) Criminology & Criminal
Justice 334, 335.

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