Stricter consent laws could have greater impact on teens: Law Council

Young people having their first sexual experiences are at higher risk of becoming criminalised under stricter sexual consent laws, the country’s peak legal body has warned a Senate inquiry probing whether the laws should be more consistent across Australia.

Several women’s and advocacy groups are calling for nationally uniform laws around consent – including a standardised age and legal expectation for actively communicating consent – to create a clearer message about acceptable behaviour, and allow for consistent sex education that can spark cultural change nationally.

Senator Nita Green called the inquiry into sexual consent laws and education.Credit: Alex Ellinghausen

But there are many concerns the Law Council of Australia says should be considered carefully, including differing state criminal systems, the risk that laws are watered down to achieve consensus, and tensions in upholding the rights of both accused perpetrators and victim-survivors.

Hearings will begin this month in a Senate inquiry into sexual consent laws and education, which has been called by Labor senator Nita Green following a years-long conversation about sex and consent in Australia driven by advocates including Saxon Mullins, Brittany Higgins, Grace Tame and Chanel Contos.

“I think there’s still a lot of unanswered questions about how we teach young people about consent, what the best form of consent laws should be, and whether the justice system is serving victim-survivors in the way that it should be,” Green said. “The submissions clearly show there are a broad range of views people want to raise.”

NSW, Victoria and the ACT have introduced “affirmative consent” laws in the past two years, which emphasise that consent to sexual activity should be actively communicated and cannot be assumed based on silence. Other jurisdictions, such as South Australia and Western Australia, have lower thresholds.

There are also disparities in how states and territories approach “stealthing” – which refers to removing or tampering with a condom without consent – as well as variations in the age of consent, which is 16 in most jurisdictions but 17 in South Australia and Tasmania.

The Law Council of Australia, the peak representative body for lawyers, recognised that a “uniform approach, backed by national consensus and government leadership, has the benefit of facilitating clear messaging and allows for consistent education on sexual consent across all jurisdictions”.

However, the council cautioned that pursuing national harmonisation carried “practical impediments, risks and opportunity costs”, while affirmative consent models could affect young people, who are more vulnerable.

“The Law Council notes that sexual offences are not only disproportionately committed against, but also investigated and prosecuted against, teenagers and other young people,” it said.

“Young people are often in the process of exploring their sexuality and having their first sexual experiences. This makes young people vulnerable to sexual offending, but also puts them at a higher risk, due to their relative inexperience, of contravening criminal prohibitions in this area.”

It also said harmonising laws could lead to “levelling down” the standards in some jurisdictions to achieve a base level of uniformity, while frequent changes to the law in this area risked undermining legal certainty.

Any changes should therefore be weighed against other measures that could be pursued to improve the experience of victim-survivors, such as restorative justice options. “Restorative justice can take many forms, including an exchange of letters between the person harmed and the person responsible, or a mediated conference with the person harmed and the person responsible,” the submission said.

The National Foundation for Australian Women told the inquiry that the way consent is defined and defended goes “to the heart of upholding women’s rights to bodily autonomy, agency and self-determination”.

“It is [the foundation’s] strong view that affirmative consent is fairer and more balanced, in that an individual seeking to have sex with another person must obtain clear, expressed consent,” its submission said.

It said without affirmative consent as the “unambiguous national standard”, inconsistencies could benefit perpetrators, make consent education complicated and incompatible across state borders, and make it hard to develop strong and clear messages about what was lawful behaviour.

The Victorian government’s submission said it supported making consent laws more consistent, and that emerging evidence from NSW, the ACT and Victoria would help determine how that is best achieved.

The ACT government also said inconsistencies could cause confusion. “Consistency across jurisdictions means a person can have a full understanding of the expected behaviour and consequences for breaching those expected standards, no matter the location,” its submission said.

“It allows for society to call out unacceptable behaviour and seek to change attitudes and behaviours that enable people to perpetuate sexual violence. Consistent laws around sexual assault ensure jurisdictions can work more collaboratively on responding to and preventing sexual assault.”

However, Queensland Minister for Women Shannon Fentiman said divergent laws of evidence and procedures in Australia meant it would be impossible to achieve a consensus across the country.

Legal Aid NSW recommended a nationally uniform age of consent but said inconsistencies in sexual consent laws were “relatively minor and do not cause any significant practical issues”.

It also called on governments to consider broader measures outside the law, including community education campaigns, more comprehensive consent and sex education in schools, and training for all criminal justice participants.

Support is available from the National Sexual Assault, Domestic Family Violence Counselling Service at 1800RESPECT (1800 737 732) or the Men’s Referral Service on 1300 766 491.

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