Reforms have been implemented to reshape the way sexual violence is addressed in Victoria. In a proactive move, the state government has sanctioned modifications to the Crimes Act 1958, paving the way for the adoption of an affirmative consent model. This pivotal model underscores the collective responsibility of all parties involved to ensure the acquisition of unequivocal and enthusiastic consent prior to participating in any form of sexual activity. Furthermore, these amendments represent a shift in focus from victims to perpetrators, a strategic measure aimed at fortifying protections for those who have experienced sexual offences and survivors within the realm of sexual misconduct. 

Defining Consent under the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022

The Crimes Act 1958 has undergone significant revisions to better define consent and delineating the circumstances under which consent is considered valid or invalid:

Pre-July 2023 – Section 36 – Consent:

  1. A definition of consent as an agreement that is voluntary and freely given. This definition set the standard for consent, ensuring that all sexual interactions are based on mutual willingness.
  2. Non-resistance to an act, whether verbal or physical, does not imply consent.
  3. Consenting to one sexual act does not inherently imply consent to any other act. This law applies regardless of whether the acts involve the same or different individuals, occur at the same or different times or places.

Post July 2023 – Section 36AA – Circumstances of Non-Consent:

1. Instances of Non-Consent: The newly introduced Section 36AA meticulously outlines scenarios in which consent is deemed invalid. These include, but are not limited to:

  • Absence of explicit verbal or physical indications of consent.
  • Submission due to force, fear of harm, or the apprehension of force, irrespective of timing or repetition.
  • Submission arising from coercion or intimidation, irrespective of the timeline or frequency.
  • Submission during unlawful detention.
  • Submission resulting from the abuse of authority or trust.
  • Engagement while asleep or unconscious.
  • Engagement while under the influence of substances to a degree that impairs capacity to consent.
  • Inability to comprehend the sexual nature of the act.
  • Misinterpretation of the sexual nature or identity of the act or parties involved.
  • Mistaken belief that the act serves medical, hygienic, or non-sexual purposes.
  • Participation based on false representation within the context of commercial sexual services.
  • Participation is premised on the mistaken belief that a condom is used, which is subsequently intentionally removed.
  • Retracting consent after initially granting it.

2. False Representation: The amendments acknowledge the potential for false or misleading representation, which can take explicit or implicit forms and can be conveyed through words or conduct.

3. Commercial Sexual Services: The term “commercial sexual services” pertains to sexual services provided in exchange for payment, as defined in section 53A.

Intimate Image Sharing: A Legal Perspective

The Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 also introduces a new Subdivision (8FAAB) to address intimate image sharing. The new laws address modern concerns surrounding unauthorised sharing of intimate images. By emphasising consent, outlining offences, and safeguarding minors, this legislation safeguards individuals’ rights and encourages responsible conduct in intimate image matters. Key facets include:

  1. Defining Intimate Images: The act defines terms crucial to understanding the context, such as “consent,” “intimate image,” and “distribute.” Intimate images encompass those depicting sexual activity, context, or specific body parts.
  2. Navigating Consent: Consent for producing or distributing intimate images hinges on free and voluntary agreement. However, consent for one type of image does not extend to others, distinguishing between photographs and videos.
  3. Non-Consensual Situations: The act addresses situations where consent may be compromised due to coercion, intimidation, or incapacitation. It covers a range of circumstances, including force, fear, and intoxication.
  4. Offenses and Penalties: The legislation establishes offences related to production, distribution, and threatening distribution of intimate images. Penalties, varying with the severity of the offense, can result in imprisonment for up to three years.
  5. Protection of Minors and Disposal Orders: Minors under 16 require consent from the Director of Public Prosecutions for prosecution. Intimate image disposal orders allow forfeiture, destruction, or disposal of seized items, safeguarding against future offenses.
  6. Aligning with Community Standards: The act recognises that production or distribution of intimate images should align with community standards. Factors like context, nature of the image, and impact on privacy contribute to determining contravention of these standards.

In Conclusion

The government conducted thorough consultations with individuals who have experienced victimisation, placing their personal encounters at the core of these reforms, aiming to construct change that is both impactful and enduring. Additionally, consultations took place with the judicial system and other pivotal stakeholders. These reforms will receive backing from community-centered education provided by local groups and expert services, as unveiled in the Victorian Budget for the year 2022/23.

In conclusion, Victoria’s recent reforms signify a crucial shift towards addressing sexual violence. By emphasising collective responsibility for obtaining clear consent and redirecting focus from victims to perpetrators, these reforms enhance protections for survivors and promote a safer community environment.

If you find yourself needing legal guidance on matters related to sexual consent, Galbally Parker Lawyers are here to provide the expertise and support you require. Our dedicated team of sexual offence lawyers are well-versed in navigating legal intricacies and advocating for your rights.