Page 88 - Week 01 - Tuesday, 8 February 2022
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Finally, the bill introduces the concept of reasonable belief. The current legislation provides that an accused person is guilty of an offence if they know that another person does not consent to a sexual act or is reckless with that consent. These are subjective standards. This bill introduces the principle that any belief that an accused person may hold about another person’s consent must be reasonable under all circumstances, according to an objective standard. In cases where an accused person does nothing to ascertain another person’s consent, they will not be able to rely on the defence of genuinely but mistakenly having believed that the other person consented.
This bill offers improved protection and support for some of the most vulnerable and marginalised in our community. It will also help to support a cultural paradigm shift, a shift to one where would-be perpetrators would think again before committing an act of sexual violence—to a community that has an improved understanding about what constitutes healthy, respectful relationships. The proposed changes will help break down the stigma and shame that are often associated with sexual violence victimisation. Through this bill, greater clarity is provided to help victim/survivors to identify a matter of sexual assault and to feel confident in reporting it. The proposed legislation makes it very clear what consent is and what it is not.
Historically, sexual abuse, sexual assault and rape crimes are in the category of the least reported crimes, not least because of society’s tendency to blame the victim/survivor. Victim/survivors often fear coming forward because the criminal justice system is often a traumatic and harrowing journey. They are often not believed. Many are asked how they contributed to the offence, or their actions, such as the clothes they were wearing, are analysed and judged and may be considered to have contributed to the assault.
I hope and anticipate that the changes introduced through this legislation will reduce the number of sexual assaults occurring in our community and encourage more people to come forward and report instances of sexual assault, to improve the experience of victim/survivors in the criminal justice system and make sexual violence easier to prosecute, to hold perpetrators to account through a greater number of successful prosecutions and to provide a framework and a basis for improved community education. These laws make it clear that as a community we expect people to actively seek consent and, importantly, that victim/survivors did not have an obligation to do or say anything to refuse consent.
As recommended by the committee inquiry and the ACT government in 2018, as well as the final report of the ACT government’s Sexual Assault Prevention and Response Steering Committee in December last year, a strong community education program is critical to support the legislative reform—a holistic approach that incorporates community education about the nature and evidence of gender based violence and respectful relationships, together with targeted training for ACT Policing, legal practitioners and judiciary—and consent education in schools is needed.
Just last week in the New South Wales Law Society’s online journal, Liz Snell of the Women’s Legal Service in New South Wales said:
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