Consent laws ‘criminalise spontaneous marital sex’, says Queensland Law Society

The Queensland parliament has been urged to adopt new consent laws which legal bodies say could criminalise married couples having spontaneous sex and could be misused in messy divorce proceedings.

The Queensland parliament has been urged to adopt new consent laws which legal bodies say will criminalise married couples having spontaneous sex.

New sexual consent laws in Queensland could criminalise married couples having spontaneous sex and be misused in messy divorce cases, the state’s peak legal body warns.

The Queensland Law Society has told state MPs their attempts to replicate consent laws in other jurisdictions – which demand a person get “affirmative” consent before sex – could lead to miscarriages of justice.

But the parliamentary committee reviewing the consent bill has ignored the Law Society’s warnings and recommended the bill go to a vote.

The Queensland Law Society, in a submission to the committee, said the state’s proposed bill could criminalise spontaneous sex ­between long-term partners ­because they would be required to explicitly communicate consent.

“A long-term married couple may have spontaneous sexual intercourse without any prior explicit communication because their history enables them to understand each other’s non-verbal behaviours,” the submission reads. “(The bill) is an inappropriate extension of the criminal law.”

NSW, the ACT, Tasmania and Victoria have reformed consent laws in recent years to adopt an affirmative model, in the wake of the MeToo movement after many alleged victims came forward to reveal their experiences with sexual assault and the justice system.

Queensland’s recommended reforms come as the federal government on Saturday releases a national framework guiding consent messaging for young people, which champions consent as “affirmative” and “communicated”.

The QLS said it did not support a provision in the bill that "a person who does not offer physical or verbal resistance to an act is not, by reason only of that fact, to be taken to consent to the act”.

“It should not be passed because it artificially limits the circumstances in which consent is, in fact, given and is not good law,” the submission reads.

“Queensland law already recognises that silence or lack of resistance does not equal consent in R v Shaw (1996) when the Court of Appeal stated that ‘a complainant who at or before the time of sexual penetration fails by word or action to manifest her dissent is not in law thereby taken to have consented to it’.”

The QLS said the proposed laws could be weaponised by parties undergoing disharmonious divorce proceedings, which could result in a “miscarriage of justice”.

“Take a long-term married couple (as an) example again. Suppose that five years later they are divorced. Person A subsequently alleges that the ‘spontaneous sexual intercourse’ was rape. Why should Person B be prevented from saying that s/he believed there was consent arising from the context of their previous long-term loving relationship where sex was often initiated on the basis of non-verbal cues and without physical resistance,” the submission reads.

The Queensland Council for Civil Liberties agreed with the QLS submission, adding that there is not enough clarity around what the consent laws would look like for those in long-term relationships.

“For example, a couple in a long-term relationship have sex every Friday night after dinner, they need something more than the relationship and its understandings to establish consent,” the QCCL submission reads.

“However, the proposed statute does not make it clear what that is.”

But on Friday afternoon, the report from the state parliament’s Legal Affairs and Safety Committee recommended the government adopt the controversial bill, saying “many stakeholders supported the implementation of an affirmative consent model”.

“This bill implements a host of recommendations from multiple inquiries, including the Hear her Voice reports from the Women’s Safety and Justice Taskforce, the Commission of Inquiry into the Queensland Police Service, and the Royal Commission into Institutional Responses to Child Sexual Abuse,” the report forward, written by Labor MP Peter Russo, says.

“Years of investigations, reviews, hearings and submissions at both levels of government across Queensland have shown one thing – the need for change.

“This bill is about change. Changing how we think about and treat consent. Changing how the criminal justice system responds to coercive or controlling behaviour. Changing how juries are to be directed, how first-time domestic violence offenders can be channelled towards rehabilitation, and what considerations exist when deciding bail and sentencing.”

Queensland Liberal MPs said the inquiry into the bill did not go far enough to address the concerns of the QLS and the QCCL, and “significant concerns” remain about its present form.

“It cannot be enough to only discuss some of the more minor concerns raised by learned and serious stakeholders,” an addendum to the report, written by Laura Gerber and Jon Krause, reads.

“This report should have reflected the significant issues raised by submitters, and it is the opposition’s opinion that at present this is seriously deficient. These serious issues have largely been ignored.”

The government has three months to respond to the committee’s report.