The bill is the first tranche of legislative reform in response to the Victorian Law Reform Commission’s Improving the Justice System Response to Sexual Offences report.

Its amendments adopt an affirmative consent model, which makes it clear that everyone holds the responsibility to receive consent before engaging in sexual activity. 

Victorian Attorney-General Jaclyn Symes commented on the new legislation: “An affirmative consent model is an important part of changing community attitudes towards sexual offences — moving away from victim-blaming and reducing the shame and trauma often felt by victim-survivors.” 

The legislation forms part of an ongoing commitment to develop the whole-of-government 10-year strategy to address sexual violence and harm. 

The new model holds that, for belief in consent to be considered reasonable, a person must have taken steps by saying or doing something to find out if the person consents — and receive a clear and enthusiastic go-ahead.

This can include, but isn’t limited to, verbally asking and receiving a yes, a physical gesture like a nod, or reciprocating a move such as removing clothing. 

Even if this requirement is met, their belief in consent must still be informed by all other occurrences in the interaction. For instance, considering cues such as pushing away the accused’s hand, or negative facial reactions. 

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The government will also introduce stronger laws to target image-based sexual abuse, including taking intimate videos of someone without their consent and distributing, or threatening to distribute, the images. These laws will also cover deepfake porn.

The reforms will also cover circumstances involving condom use, making it a crime if a condom is removed, not used, or tampered with without the other person’s consent — commonly referred to as “stealthing”. 

“By making it crystal clear that stealthing is a crime, we’re not only condemning it but making it easier for victims to realise what’s happened to them — and that it isn’t something to be ashamed of,” said A-G Symes. 

The Law Institute of Victoria (LIV) commended the government on the decision to criminalise stealthing.

“Criminalising this behaviour makes it clear that consent can be specific to a particular activity in a particular manner,” said LIV president Tania Wolff.

The bill also includes new jury directions to address misconceptions in sexual offence trials and reforms to better protect the confidential health information of sexual offence complainants. 

In creating the legislation, the government consulted extensively with victim-survivors to ensure that lived experience is at the centre of the reforms, along with the courts and other key stakeholders, adding to the effectiveness and durability of the changes.

Ros Spence, Minister for the Prevention of Family Violence, commented: “This is a crucial step in stopping all forms of violence against women.  

“Every Victorian has a responsibility to challenge the harmful behaviours, attitudes and assumptions that lead to sexual violence.

“This new standard of consent in Victoria shifts the focus away from the victim and towards the accused and what actions they took to confirm consent.”

However, the LIV remains critical that the new legislation may not be completely effective and just.

“The proposed amendments to consent, in the LIV’s view, complicate the law rather than simplify it and will not produce an improved outcome,” Ms Wolff said.

“While the LIV supports reforms to improve how the justice system responds to sexual offences, any reform must properly balance the interests of victim-survivors with the fundamental right of the accused to a fair trial. 

“Implicit in this, is an ability to appropriately test the evidence being presented in support of the charge. 

“This is even more critical when the result of a conviction means a loss of liberty.”

These reforms will be supported by community-based education delivered by local organisations and specialist services, announced in the Victorian budget 2022–23.

However, the LIV noted that a larger emphasis should be placed on education rather than primarily focusing on legislative reform. The Victims Right Law Centre also highlighted the need for community education.

“The conversation around consent has grown louder in recent years, and we need to continue to educate the community about what clear steps to receive consent actually look like,” Ms Wolff added.

The LIV added that restorative justice approaches would also aid in addressing the issue. 

The vital consultative work underpinning the strategy to address sexual violence is continuing throughout this year and will inform the strategy’s release next year to ensure it delivers meaningful change.