From Our Desk

The Victorian Government has recently passed new laws that relate to the definition of ‘consent’ in sexual offences cases. The amendments to the laws have been designed to follow a more uniform approach to the laws of other states, in particular New South Wales, and can be described as changes that have been made with a view to adopting an ‘affirmative consent’ model in sexual offence cases.

The amendments to the laws have received mixed reactions, with several parties including defence lawyers highlighting significant concerns in relation to the laws, whereby the onus is now likely to be placed upon an accused person to confirm whether or not they have received actual consent from the complainant. In short, the laws are designed in a way where it is now likely for the actions of the accused person to be highly scrutinized by the trial judge or jury, or at the very least, scrutinized at a higher level than the actions of the complainant. 

The changes to the law came about after the Victorian Government adopted recommendations from a report released by the Victorian Law Reform Commission that was handed down in 2021. The report entailed statistics which highlighted both a low conviction rate for persons charged with sexual offences, as well as an alarming rate whereby a number of victims of sexual assault were not reporting offences to relevant bodies. It was this report that highlighted a need to offer better protection for complainants in criminal proceedings. 

The obvious concern that is raised for defence lawyers and persons charged with sexual offences, is one where the changes to the laws leaves open the risk for wide interpretation and potentially unfair consequences for accused persons in sexual offence cases, and in particular a higher demand for accused persons to give evidence in criminal proceedings which arguably takes away an accused persons fundamental right to silence.

Currently the laws in Queensland have not been subject to any amendments, but recent enquiries suggest that in the near future, such changes are likely to be followed by the Queensland Government.

Recently, there has been a major review calling for Queensland to adopt similar changes to the laws after the Women’s Safety and Justice Taskforce released a lengthy report seeking over 150 recommendations to improve experiences within the Queensland Justice System. 

In Queensland, consent is currently defined in section 348 of the Criminal Code 1899. The section relevantly provides:

• Consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.

The affirmative consent model now in force in Victoria provides:

• Whether or not a person reasonably believes that another person is consenting to an act depends on the circumstances.
• The circumstances include any steps that the person has taken to find out whether the other person consents.

Both the Queensland legislation and the Victorian legislation require the Prosecution to disprove that the defendant did not reasonably believe the other person was consenting. 

In assessing whether a defendant has a reasonable belief about consent, the Jury in both states must assess ‘the circumstances’. That assessment has always silently included “steps taken to find out whether the other person consents”, however the Victorian legislation now refocuses the enquiry. 

The affirmative consent model does not prohibit a Jury having regard to any particular circumstances, nor does it prohibit questioning about what a complainant did or did not do.

We would suggest that regardless of the language of the Act, the enquiry for a jury has, will, and should be entirely about ‘the circumstances’ of the case.  

In both models it is also important to remember that consent must be “given”.[1]

In R v Makary [2018] QCA 258, [50] Sofronoff P explained:

“the giving of consent is the making of a representation by some means about one’s actual mental state when that mental state consists of a willingness to engage in an act. Although a representation is usually made by words or actions, in some circumstances, a representation might also be made by remaining silent and doing nothing.[2] Particularly in the context of sexual relationships, consent might be given in the most subtle ways, or by nuance, evaluated against a pattern of past behaviour.”

Queensland has since enacted law to the effect that “silence or submission” is not consent. Section 348(3) has been enacted and provides:

“person is not to be taken to give consent to an act only because the person does not, before or at the time the act is done, say or do anything to communicate that the person does not consent to the act.[3]” 

However, President Sofronoff’s statement that “consent might be given in the most subtle ways, or by nuance, evaluated against a pattern of past behaviour” is still correct.

In reality a Jury is tasked to make an assessment based on the whole of the evidence and they bring to the jury room their own human experience. What weight the jury give to any particular ‘circumstance’ or piece of evidence is a matter for the jury.

As social attitudes progress, Juries will come to expect clearer communication about consent. As this changes, Juries will expect the defendant to be more willing to explain how they had a reasonable belief about consent, and what steps (or events), even subtle or nuanced, suggest that consent had been given. In the absence of the defendant’s account, it is more difficult to highlight those features or for the jury to know those facts.