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Recent changes regarding sexual offence reforms

Consent reforms and image-based sexual offence reforms

Monday 21 August 2023 at 5:49 am

On 30 July 2023 amendments to the Crimes Act 1958 (Vic) came into effect.  These reforms are set out in the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022.

Certain pages of LawHub have been revised to reflect the changes in the law relevant to consent and image-based sexual offences (sexting).

The revised pages include:

An explanation of the reforms is set out below.

Consent reforms 

  • Changes to the definition of consent: the Act includes several new sub-clauses into the definition of consent in section 36, including adding ‘voluntary’ to the overarching definition of consent as ‘free’ and ‘voluntary’. Additional sub-clauses section 36(2) and (3) provide further guidance about what does not constitute consent, including that a person does not consent to an act just because they do not resist the act physically or verbally and (3) that consent cannot assumed because of previous sexual behaviour (for example, that a person consented to a different sexual act).
  • New objective clause in section 37A: explicitly highlights the objective of the sub-division is to promote the principle that consent to an act is not to be assumed and that consent involves ongoing and mutual communication and decision making between each person involved. 
  • Expansion of consent vitiating circumstances: four new circumstances and one revised circumstance in which there is no consent (consent vitiating circumstances) have been added to the existing list in (newly renumbered) section 36AA:
    • Force, harm, of fear of force or harm of any kind – combines and strengthens the existing circumstance in section 36(2)(a)-(b), but specifies harm can include psychological, economic, financial harm and sexual harassment. It also explicitly outlines that it does not matter when the force, harm or conduct causing fear occurs, provided it is the reason for the submission and the submission can arise from a single incident or be part of an ongoing pattern.
    •  Coercion or intimidation – provides that a person does not consent if they submit to the sexual act because of coercion or intimidation. As with the provisions dealing with the use of force and harm, there are similar provisions are included about the timing of the coercion or intimidation, and whether it is a single incident or is part of a pattern of behaviour.
    • Overborne by the abuse of a relationship of authority or trust – intended to capture situations where a person abuses their position of power in a relationship to cause the other person to submit or feel they have no choice but to submit. The provision is intended to capture relationships involving an obligation of care and protection and there must be abuse of the relationship by the person in the position of power to cause the complainant to be overborne.
    • False or misleading representations about payment for commercial sexual services – makes clear that a person does not consent if the act occurs in the provision of commercial sexual services and the person engages in the act because of a false or misleading representation that they will be paid. The representations can be by words or conduct (including omissions).
    • Agreement that a condom will be used, and it is not used, removed or tampered with (‘stealthing’) – this provision is intended to apply where there has been explicit or implicit agreement to use a condom prior to a sexual act taking place, and will capture intentional non-use, removal or tampering of a condom, but not accidental conduct or consensual acts.
  • Reasonable belief in consent (affirmative consent) – changes and establishes a new requirement that a person must ‘say or do something’ to find out if the other person consents to a sexual act to have a reasonable belief in consent.
  • Timing requirement: The requirement to say or do something must be done within a reasonable time before or at the time the sexual act takes place.
  • Exception to the requirement to take steps: There is a narrow exception to this requirement where a person’s failure to say or do something was substantially caused by a cognitive impairment or mental illness. The accused bears the legal onus of proof to prove the exception applies.

Image-based sexual offence reforms

  • Consolidates, revises and moves image-based sexual offences from the Summary Offences Act 1966 to the Crimes Act 1958 of:
    • producing an intimate image (including filming, recording, taking or otherwise capturing an image and digitally creating an image)
    • distributing an intimate image
    • threatening to distribute an intimate image.
  • Expands the definition of intimate image to include digitally created images to capture ‘deepfake’ generation of images that may be manipulated or altered to depict a complainant and clarify that the term also includes images depicting the breasts of transgender and intersex people identifying as female.
  • Provides a definition of consent in relation to the production or distribution of an intimate image, consistent with the definition of consent relevant to sexual assault (with some differences), including consent vitiating circumstances.
  • Increases the maximum penalty of the offences to three years, and the offences will be indictable, rather than summary.
  • Requires DPP consent to prosecute these offences if the accused is under 16 years of age at the time of the alleged offending.
  • Creates a ‘disposal order’ for the destruction or disposal of an intimate images that can be ordered by the Court. The DPP or a police officer may apply for these orders, either that are the subject of a criminal proceedings that were discontinued, dismissed, withdrawn, permanently stayed, where the accused was acquitted or found not guilty, the person was released on an undertaking, or the intimate images were not the subject of a criminal proceeding. The Bill also amends the Confiscation Act so that disposal orders can be made where a person is convicted of an offence.