Queensland Parliament has passed new sexual consent laws that require people to consent or reject a sexual act verbally. This means that silence or intoxication can no longer imply agreement was given for sexual relations.
Under the new law, which had bipartisan support, consent can also be withdrawn by words or actions during the act of sexual relations.
However, alleged perpetrators can still use mistaking consent—such as by there not being a verbal rejection—as a criminal defence against sexual assault in some circumstances.
The Queensland Greens unsuccessfully tried to move last-minute amendments to mandate affirmative consent and remove the mistake of fact defence.
Attorney-General Shannon Fentiman said the updated laws were an “important first step” but said there was more to do.
“We have enshrined in the Criminal Code principles like silence doesn’t amount to consent, consent once given can be withdrawn, and the self-intoxication of a defendant cannot be relied upon by that defendant to show that they were mistaken about whether or not consent was given and that was reasonable,” Fentiman said.
“This will provide clarity for judges to properly direct juries and get better outcomes for victims,” she said.
But critics, such as Greens MP Amy McMahon, wanted the law to go further, preferring an affirmative model of consent.
Affirmative consent is described as an explicit, informed, and voluntary agreement to take part in a sexual act. McMahon said such models are already in place in two other states.
“The minor changes to the model of consent in this bill leave the onus on victims to express non-consent or actively resist,” she told Parliament.
“While I’m pleased that the bill states consent can be withdrawn and that silence cannot constitute consent, it fails to introduce an affirmative model of consent,” she said.
The Liberal National Party (LNP) didn’t back the Greens’ amendments but voiced support for an affirmative consent model.
LNP spokeswoman for the prevention of sexual violence Amanda Camm said the affirmative consent model has widespread support among survivors and advocates.
“The bill, in its current form, makes no significant changes towards seeking justice for survivors of sexual violence, holding perpetrators accountable for their actions or increase safety for the Queensland community,” Camm told Parliament.
“Furthermore, the recommendations on which the Bill is based do not reflect the views of survivors or survivor advocates,” she said.
“We implore you to channel your courage and energy to ensure that women in Queensland who have experienced sexual violence have the same protections as women in Tasmania and Victoria,” it states.
The letter asks that laws require people to “enthusiastically consent to sex” and include that “reasonable steps are taken” to ensure consent.
“In practice, this means people demonstrate they want to have sex before it happens and ensure they take steps to ensure agreement,” it states.
Signatories include the Women’s Legal Service Queensland, Queensland Council of Social Services and the Queensland Sexual Assault Network.
Women’s Legal Service CEO Angela Lynch said the new law was born of the Queensland Law Reform Commission report, which she said “failed to listen to survivors, failed to listen to rape and women advocates and pretty much only listened to the lawyers,” News.com.au reported.
Lynch is concerned that under the new law, a rape victim who has frozen in fear during an attack could have their actions interpreted as consent.
“You can’t assume that somebody who is frozen, someone who is unconscious, someone who just hasn’t said anything is enough,” she said.
“The woman doesn‘t believe she has consented, she’s actually frightened, but often it can be argued in court to take it (the complaint) further,” she said.
During the debate in state Parliament, the Queensland government said it had not ruled out support for an affirmative consent model.
Fentiman has already launched a task force review of the experiences of women in the criminal justice system, led by former Court of Appeal judge Margaret McMurdo, that’s considering an affirmative consent model.
It means the new consent laws could be superseded within the next 12 months.