Sexual consent should be based on free and voluntary agreement, Labor MLA Dr Marisa Paterson believes. She proposes amending the ACTโs Crimes Act 1900 to introduce a communicative model of consent: sexual partners must freely and voluntarily give consent (whether through words or action), and can withdraw consent at any stage.
โThis is not about a contract or an overly prescriptive approach, but one which focusses on decent, respectful human relationships,โ Dr Paterson said. โIf a person wants to have sex with another person, it is common human decency to ask for consent.โ
The Crimes Act 1900 defines โconsentโ as negated if there is force, violence, humiliation, abuse or intoxication. Dr Patersonโs amendments will change consent from something that is presumed and can be negated, to something that is unassumed and must be given. She believes this will be more in line with contemporary community expectations.
โThese laws will make it clear that as a community, we expect people to actively seek consent and importantly, that victim-survivors did not have an obligation to say or do anything to refuse consent,โ she said.
Dr Paterson also believes the amendments will help victim-survivors of sexual assault, making it easier for them to report violation.
At present, an accused person is guilty of an offence if they know another person does not consent to a sexual act or are reckless as to consent. These are subjective standards, Dr Paterson believes (i.e., they depend on the defendantโs knowledge).
Dr Patersonโs proposed amendments would introduce an objective test: the accused personโs belief that consent was given must be deemed reasonable in the circumstances according to an impartial standard. In cases where an accused person does nothing to ascertain another personโs consent, they will not be able to rely on a defence of genuinely but mistakenly having believed the other person consented.
An Exposure Draft of the Bill is available for public comment until COB Friday 16 July. The community can view a copy of the proposed changes, and provide comment through Dr Patersonโs website.
ย The ACT Government considered similar amendments in 2018; the Standing Committee on Justice and Community Safety held an Inquiry. Dr Paterson has reviewed the submissions made by stakeholders in 2018, and the ACT Governmentโs response to the Inquiry. The NSW Law Reform Commissionโs Report โConsent in relation to sexual offencesโ has informed her legislative amendments.
Dr Paterson said the ACT Governmentโs Sexual Assault Prevention and Response Program, particularly the Law Reform Working Group, would oversee her amendments and advise on them.
She believes the proposed legislative changes will bring the ACT in line with Tasmania and Victoria, and provide both greater protection for the community and justice for victim-survivors of sexual assault.
Dr Paterson said: โThis is a significant step forward for our community and I hope it is seen as an empowering moment for all those survivors of sexual violence in our community โ we believe you, we support youโ.
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