The ACT should have an affirmative model of sexual consent, based on free and voluntary agreement, believes Labor MLA, Dr Marisa Paterson.

Her Crimes (Consent) Amendment Bill 2022, introduced to the ACT Legislative Assembly today, proposes updating the Crimes Act 1900 in line with contemporary community understandings and expectations of consensual sexual activity.

The Crimes Act concerns sexual assault as a violent act; it defines ‘consent’ as negated if there is force, violence, humiliation, abuse, or intoxication. Dr Paterson’s amendments would introduce a more nuanced and defined set of parameters around what consent is and is not; consent would change from something that is presumed and can be negated, to something that is unassumed and must be given.

Debate on Dr Paterson’s bill has been adjourned to the next sitting. It will be referred to the Assembly’s Standing Committee on Justice and Community Safety.

“The level of sexual violence in the community is unacceptable,” Dr Paterson said. “This reform is a critical step in delivering justice to victims and survivors of sexual violence.

“Together with community education and awareness, these reforms will help us transition to a society where healthy, respectful relationships form the basis of sexual activity, and where consent must be given, and is not to be presumed.

“I speak directly to victim/survivors – I am so sorry for what you have experienced. I will work tirelessly to ensure this Bill passes, and that the law explicitly states that sexual consent must be free and voluntary, and it must be communicated – otherwise, it is sexual assault.”

Brittany Higgins, ACT sexual assault victim-survivor and Global Institute of Women’s Leadership Visiting Fellow, supports Dr Paterson’s reforms.

“Today marks a turning point for the ACT,” she said. “We have a chance to address the systemic issue of sexual violence, and improve access to justice for all victim-survivors.

“This is an acknowledgement that we are all responsible to seek enthusiastic consent. Someone isn’t saying ‘yes’ just because they don’t say ‘no’ or do not physically resist.

“Victim-survivors have lived silently with the trauma of sexual violence for too long. These reforms will seek to deliver systemic reform that will assist them in getting the justice they deserve.”

Grace Tame, 2021 Australian of the Year, also supports Dr Paterson’s Bill. She and Ms Higgins will address the National Press Club on Wednesday.

Dr Paterson released an Exposure Draft for public comment in June. Over a month of consultation, formal submissions and online commentary provided overwhelming support for the proposed changes. Dr Paterson also talked to stakeholder groups and the ACT Government’s Sexual Assault Prevention and Response (SAPR) working group on Law Reform.

Last year, the ACT Council of Social Service (ACTCOSS) was concerned language included in the draft may have criminalised transgender people for not disclosing gender history prior to sexual relationships.

“After consultation with Dr Paterson, explicit wording has been included to offer explicit protections against transphobic behaviour and to recognise that transgender people are not inherently fraudulent or deceptive,” said Dr Gemma Killen, ACTCOSS Head of Policy.

Dr Paterson has edited her Bill to strengthen its provisions. She thanked everyone who reviewed the draft materials and commented on this important issue.

ACTCOSS welcomed Dr Paterson’s Bill in its new form.

“The implementation of legislation to address the egregious prevalence of sexual violence in our community is hugely important, and will make a difference in many people’s lives,” Dr Killen said.

“Clarifying the bounds of affirmative consent is essential for forging a culture of safe, consensual, and respectful relationships in the ACT and broader community. This amendment will also lead to better support and legal protection for victim-survivors of sexual assault and sexual harassment.

“Increased legal requirements around active provision of consent will bring the law into line with our expectations of acceptable behaviour and ensure greater communication around consent. The coupling of this reform with improved community education and awareness programs is fundamental to primary prevention of sexual violence in our community.”

Dr Paterson welcomes a further community education and awareness campaign.

“In parallel with these important law reforms, the ACT Government’s SAPR program will ensure broad and targeted community education about healthy, respectful relationships.”

Yvette Berry, ACT Minister for Women and the Prevention of Domestic and Family Violence, is co-ordinating this work.