Page 1307 - Week 04 - Thursday, 5 May 2022
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introduced by this bill is that an honest but unreasonable belief that an accused person has had about the other person’s consent to a sexual act is no longer acceptable if the accused person did not say or do anything to obtain consent. The accused person’s failure to do anything at all to ascertain consent will not be an acceptable defence. This is in line with growing community expectations about consent and aligns with recent law reform in New South Wales. This is a proportionate reform, taking into account what, if anything, an accused person said or did to obtain consent in assessing the reasonableness of an accused person’s belief that consent was given.
Regarding limitations imposed on human rights, it has been argued that the bill limits a person’s rights insofar as an accused person must have done something in order to avoid a criminal liability. I wish to assure the Assembly this is not the case. The policy intent for this bill is to introduce a communicative model and to hold perpetrators to account. The objects, part 3, together with the meaning of consent in section 50B, establish that a sexual act requires informed, free and voluntary agreement by the people participating that is communicated by saying or doing something.
A recent legislative review in Ireland found that a proportionate reform for sexual consent would be for the trial to take into account what, if anything, an accused person did to ascertain consent as part of assessing the reasonableness of the accused person’s belief in consent. This bill introduces the provision that an accused person cannot rely on silence and inaction to claim that they reasonably believed the other person consented.
Section 67(5) makes provision that a jury must take into account what, if anything, an accused person said or did to ascertain consent as part of assessing the reasonableness of an accused person’s belief that consent was given, and in considering whether the accused person’s knowledge about consent was reasonable in the circumstances. The limitations are considered reasonable, justifiable and the least restrictive means to achieve their purpose. I believe the provisions of the bill are proportionate to achieve this outcome.
On other revisions in the explanatory statement, I have revised language from “transgender” to broader and more inclusive language which reflects persons of diverse gender identity and expression. This is consistent with the Discrimination Act 1991 and other ACT laws. I have included specific reference to the freeze and surrender responses of sexual violence. These are the two most commonly reported incidents of sexual violence in our community. Naming them clearly and providing distinct reference will help to change community attitudes and will validate victim-survivors’ experiences in situations of freezing and surrender as sexual violence, empowering them to report the assault. I have also provided a further explanation of section 67(1)(g) to make it clear that this bill does not introduce a higher test for a victim-survivor’s level of intoxication than is the case in the current legislation.
As noted in the report of the Sexual Assault Prevention and Response Steering Committee late last year, law reform is a critical component of more healthy, respectful relationships, as is community education. To quote the report:
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