Affirmative consent not part of current criminal code changes but could form law in future

The Attorney-General admits she accepts some advocates believed criminal code changes expected to pass parliament today don’t go far enough to protect women, but she will not be making any changes.

The Attorney-General has accepted the state government may eventually change consent laws so people must clearly say yes before a sexual encounter – but that won’t happen today.

Shannon Fentiman said she understood some advocates believed criminal code changes expected to pass parliament on Thursday didn’t go far enough to protect women but defended them as an “important first step in modernising consent laws”.

And she angrily swiped down assertions the laws wouldn’t protect women raped while unconscious and said fears that women who froze during an attack and couldn’t’ utter ‘no’ wouldn’t be protected were unfounded.

It came as sexual assault advocates made a failed eleventh-hour appeal to Ms Fentiman and Premier Annastacia Palaszczuk not to pass the consent laws today and instead draft up a new, affirmative model of consent.

Such a model would require partners to voice their consent before sexual acts.

Women’s Legal Service Queensland chief executive Angela Lynch said Thursday’s changes were a “lost opportunity” and “won’t make women safer”.

Angela Lynch AM, the CEO of Women's Legal Service Queensland, speaks outside Parliament House in Brisbane. Picture: NCA NewsWire / Dan Peled

She said laws needed to make it clear people must say ‘yes’, to protect those who “froze” when subjected to unwanted sexual acts.

Ms Fentiman this morning said the reforms were only the first step.

“I do acknowledge that there are stakeholders who would like us to do more in this space and that’s why the Premier announced a taskforce on women’s safety and justice to look at all of these issues around how women experience the criminal justice system,” she told 4BC.

“If that taskforce, which is being led by the honourable Margaret McMurdo, comes back and says we need to look at this legislation again then that’ something that our government will absolutely look at.”

She said the laws were complex, with legal experts, survivors, victims and sexual assault services needing to be consulted for “the right balance.”

But Ms Fentiman said today’s changes did make it clear that silence was not consent, consent could be given then withdrawn, and a defendant’s intoxication could not be relied on to interpret their actions.

She said the Queensland Law Reform Commission found Queensland law already had elements of affirmative consent, “that is, consent absolutely needs to be given and any actions of the defendant need to be reasonable”.

“Now I understand that there are some advocates that want us to go further but amending the criminal code … is something that needs to be fully consulted on,” she said.

She said she was open to further legislative changes that came out of the McMurdo review of women’s experiences with the criminal justice system.

Ms Fentiman said the reforms came from a report which looked at more than 135 trials of rape and sexual assault and a number of appeal decisions.

Opposition justice spokesman Tim Nicholls said the LNP too was open to further, evidence-based law changes that would deliver better outcomes.

He said more work was required on whether an affirmative consent model would “better protect, punish, deter and will it result in a better system for survivors and complainants in the legal system”.