A Senate inquiry has been established to look into current and proposed sexual consent laws in Australia, set to provide a series of recommendations in the middle of this year.

One proposal put forward to the inquiry is to harmonise Australia’s laws around sexual consent, which differ by jurisdiction.

The following outlines the differences and similarities when it comes to core aspects of sexual consent across all States and Territories in Australia.

The Age of Consent

The age of consent refers to the minimum age a person can legally consent to sexual activity. The primary goal of age of consent laws is to protect children against abuse.

A number of criminal offences could apply if a person engages in sexual activity with a person under the age of consent, whether or not the young person expresses consent.

Currently the age of consent is not consistent throughout Australia.

In South Australia and Tasmania, the age of consent is 17 years old. In all other jurisdictions it’s 16 years old.

The age of consent is raised to 18 years old in all jurisdictions in circumstances where the other party is in a position of “special care”. This includes relationships between young people and guardians, teachers, instructors, custodial officers and health professionals. 

Defining of Consent

The criminal law in Australia requires that all people participating in sexual activity are freely consenting.

The absence of consent constitutes an essential ingredient that the prosecution is required to prove in any sexual assault charge.

Every Australian jurisdiction has a statutory definition of ‘consent’. These definitions are relatively similar either referring to “free agreement” (Vic and Tas), “free and voluntary agreement” (NSW, SA, NT the ACT) or “consent freely and voluntarily given” (Qld and WA).

In the “affirmative consent” jurisdictions of Tasmania, the ACT, Victoria and NSW a person cannot be said to have reasonable grounds to believe that there was consent if that person fails to say or do anything to ascertain whether or not the other person consents.

Consent can be communicated in a variety of ways including verbally asking and receiving a “yes” in response, a physical gesture such as a nod or by reciprocating a move such as removing clothing.

In other jurisdictions, there is no requirement to proactively communicate consent.

Consent to sexual activity in Australia can be withdrawn at any time, and consenting once to sexual activity does not mean consent to all future sexual activity.

All jurisdictions also note a number of circumstances which “vitiate consent” (or render It no longer applicable) including the use of force, coercion, intimidation, blackmail, fraud or misleading a person either about the nature or purpose of the sexual activity, their identity or their marital status.

Is Stealthing Illegal?

So-called “stealthing” laws have also passed in the ACT, NSW, Tasmania and (most recently) Victoria and South Australia making it clear that the removal of a condom during sex without consent is a vitiating circumstance.

A person who lacks capacity or ability to consent also cannot consent under Australian law. A person can lack capacity due to being heavily intoxicated by alcohol or another drug, being unconscious or asleep, or because of mental illness or cognitive disability.

Knowledge of non-consent

There are notable differences in how each Australian jurisdiction approaches the mental element of the defendant (the person charged) with a sexual offence.

In NSW, Victoria, South Australia, the Northern Territory and the ACT an offence will be made out if prosecutors can prove that the defendant was aware of lack of consent or was reckless as to whether the alleged victim was consenting.

In other words, the defendant either actually knew the alleged victim wasn’t consenting or they did not give any thought as to whether they were consenting.

In NSW and Victoria, an offence can also be made out if prosecutors prove that the defendant had a belief that the alleged victim was consenting, but this was not a reasonable belief. A belief of consent will not be “reasonable” if the defendant did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person consented to the sexual activity.

In Western Australia, Tasmania and Queensland the situation is different as prosecutors do not need to prove that the defendant knew the alleged victim was not consenting. Instead, lack of consent is sufficient to prove the charge and it is for the defendant to raise a formal defence of “mistake of fact” if they wish to consider the defendant’s beliefs.

A mistake of fact defence requires that the defendant honestly and reasonably believe that the complainant was consenting at the time of the sexual activity.

In Queensland, in deciding whether a person’s belief was honest and reasonable regard may be had to anything they said or did to ascertain whether the alleged victim was consenting.

In Tasmania, a mistake of fact defence will not be made out if the defendant was reckless as to whether or not the alleged victim consented; or the defendant did not take reasonable steps to ascertain that they were consenting.

In all jurisdictions, any belief of the defendant is taken to be that of a sober person, even if the defendant was voluntarily intoxicated by drugs or alcohol at the time.

Should consent laws be harmonised?

Given the differences between States and Territories it has been argued that the Federal government should step in to harmonise laws around sexual consent.

This has proven highly controversial, particularly amongst lawyers who see both the benefits and detriments of each variation in consent elements across jurisdictions.

Greg Barns SC of the Australian Lawyers Alliance has called out recent “affirmative consent” reforms in NSW and Victoria, for being purely symbolic and unlikely to fully address the difficulties faced by complainants in criminal trials. As such, the ALA is likely to resist calls to make this reform uniform across the country.

Although in favour of a uniform approach, academics Professor Jonathan Crowe and Guyzal Hill note that there is a risk of “levelling down” consent protections if the Federal government undertakes harmonisation. That is, there may be a shift to less comprehensive sexual consent laws so as to ensure less resistance by States and Territories.

The Senate Inquiry on sexual consent laws is set to report back with its recommendations in June 2023.

AUTHOR Criminal Defence Lawyers Australia

Criminal Defence Lawyers Australia are Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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