Drunken sex, misread signals could end up in court, defence lawyers warn

Last week, the Victorian government introduced a bill into parliament that is designed to change sexual offence laws regarding consent. The rationale for this amendment is the promotion of the principle of “affirmative consent” as a requirement for all sexual activity.

The Criminal Bar Association, a group representing barristers that both prosecute and defend sexual crimes in Victoria is concerned that the proposed wording of sections of the bill will lead to unintended and unfair consequences.

The Criminal Bar Association is concerned about the wording of some parts of the consent bill.Credit:Jim Rice

The laws surrounding consent in the state of Victoria have undergone significant amendment in the last decade, particularly by reforms introduced in 2015 and 2017. These changes have recognised the many circumstances in which a person cannot consent, for example, if they are asleep or if they withdraw their agreement to a sexual act.

Further, to prove an accused’s guilt, the prosecution need only to prove that they did not “reasonably believe” that the complainant was consenting. A genuine, if unreasonably held, belief in consent is not a defence. An accused who gave no thought to whether the other person was consenting has no defence.

This suite of reforms also limited the circumstances that can lead to a reasonable belief. An accused cannot rely on a complainant’s lack of protest or physical resistance as a reasonable basis for believing the complainant was consenting. Similarly, intoxication or cultural and religious beliefs cannot be relied upon; and a complainant is taken to not be consenting if they are significantly intoxicated.

These changes to consent laws were complemented by amendments to the mandatory directions that are given to the jury by the presiding judge during a trial. In these statements, the presiding judge instructs the jury as to how they are to consider a defence of consent. Paramount in such cases is a direction that “people who do not consent to a sexual act may not protest or physically resist the act, for example, the person may freeze and not do or say anything”.

The prosecution need only to prove that they did not “reasonably believe” that the complainant was consenting.Credit:Nic Walker

The Criminal Bar Association recognises that these past reforms have made sexual offence law more robust and that this reflects the changing social standards within our community. Indeed, these many changes reflect and promote the principles of affirmative consent. It is with that understanding that the new provisions need to be assessed.

The changes contained in last week’s bill take these laws one step further, requiring people to take active steps to ascertain the consent of the other party (or parties) before engaging in sexual activity – exempting only those who can prove that a mental illness or cognitive impairment made this more difficult.

Sexual behaviour between teenagers and adults is, by its nature, nuanced. Romantic interactions might involve subtle movements and gestures and, to an extent, reading the actions of others. The proposed bill attempts to make such interactions black and white.

Perhaps think back through your own past romantic encounters and ask – when have you got it wrong? When did you not read the signs correctly? Should those actions be criminal?

Have you woken a partner from sleep with a kiss? Have you been drunk with another person at a party and engaged in a sexual encounter where neither of you recalls the exact details of the event the following day?

It is said that the proposed legislation does not seek to make these acts criminal. And indeed, at the time, neither party to the act may regard them as such. But if the relationship breaks down and a complaint is subsequently made, how in those examples could an accused person mount a defence?

Either no steps were taken to ensure consent in the example of a waking kiss, or the accused and/or complainant cannot recall the steps taken. Yet, the proposed changes to the definition of consent seeks to make a blanket rule to cover all possible situations. This is particularly concerning where the law, and its interpretation, can turn on a single word in legislation.

It should not be assumed that the potentially harsh operation of the new law would be avoided by compassion or common sense. Complainants will reasonably expect the law to be applied. Police and courts will be obliged to apply it.

The Criminal Bar Association is concerned that these amendments will disproportionately affect teenagers and young adults, as they explore their sexuality and relationships and introduce alcohol into their lives.

This is not to excuse sexual offending behaviour, but to question whether actions, in nuanced sexual encounters and relationships, ought to be made criminal if prescribed steps are not taken by an accused.

In 2018, the maximum penalty of 25 years imprisonment for rape was supplemented by a “standard” (normal) sentence of 10 years. Once convicted, lifelong reporting can follow under the Sex Offenders Registration Act. For those that commit offences as young adults this can remove their ability to travel, coach their child’s soccer team later in life and requires annual reporting to police.

The Criminal Bar Association supports important social policy change. There is no doubt that greater education about consent is required for our community. However, given the serious consequences of a conviction for a sexual offence, the law in this area should not be used to drive improvement in sexual behaviour.

It should instead reflect well-established and widely understood standards. Shelving the new law would not prevent education programs in schools and the community being used to raise those standards. Indeed, shelving the new law is not to shelve affirmative consent. Such principles are already enshrined in our legislation.

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