Friday, 19 August 2022

Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022

Second reading

Debate resumed on motion of Ms SHING:

That the bill be now read a second time.

Ms TAYLOR (Southern Metropolitan) (15:23): There is absolutely no place for sexual violence of any kind in Victoria, and we need to drive cultural change. That is why our Andrews Labor government is overhauling the way the justice system deals with sexual violence. It is no news—in fact everyone here would be very well aware—that sexual violence continues to be prevalent, and it is absolutely an unacceptable imposition on our community safety, particularly the safety of women. And we know that sexual violence can cause long-term serious harm to victims-survivors; they can literally carry it for their entire lives. It is incredibly hard to overcome these kinds of invasions of one’s personal space, and that is an understatement of what that experience may actually be. Conviction rates for sexual offences remain unacceptably low; only one in 23 rape cases that are reported actually results in a conviction. Plus we know that under-reporting is a serious problem.

So with all this in mind, in 2020 the Andrews Labor government asked the Victorian Law Reform Commission to look into justice system responses to sexual offences, and their report was tabled in December 2021, the VLRC’s Improving the Justice System Response to Sexual Offences. This report highlights the need for wideranging reform. It found that sexual violence is widespread, causes serious harm and is severely under-reported. Even when reports are made, many cases do not get to court and few that do result in conviction. This report contains 91 recommendations.

Clearly, the time for change is now. We have seen strong and powerful advocacy for sexual offence reform from very brave women, such as Saxon Mullins, Grace Tame and Brittany Higgins. We have the VLRC’s recommendations. New South Wales and the ACT have already progressed important reforms. We must act decisively to protect the community from sexual violence and ensure that the criminal justice system can respond effectively to these abhorrent crimes. But I should say that this bill is really just the beginning of a long reform journey. It will acquit several critical VLRC recommendations, but this bill forms part of an ongoing commitment from the Andrews Labor government to develop a whole-of-government 10-year strategy to address sexual violence and harm. The vital consultative work that underpins the strategy is continuing and will shape the strategy’s release next year to ensure that it actually delivers meaningful change.

Sadly we have already seen some public detractors who have been attacking and trivialising this bill. They have claimed that people will go to jail for kissing their partner, that it will kill romance, that teenagers will be inhibited from discovering their sexuality or that the bill will end the presumption of innocence; all are nonsense, may I say. This is actually fuelling unnecessary panic, and some of the comments and articles reflect the exact old ways of thinking that we actually need to change. However, many people, especially the younger generation, have made it clear they will not stand for these archaic attitudes and victim blaming any longer. We have listened, and we are driving these reforms for them. The bill still deliberately allows for the courts to consider nuanced situations, and I think that is a very, very important element of this debate and the formation of this bill. We consulted extensively on the reforms and considered the issues that were put forward by stakeholders in detail, and we have reached an ambitious but entirely appropriate position.

If I can zone in on the issue of affirmative consent, the bill will implement an affirmative consent model. The model will make it clear that everyone has a responsibility to get consent before engaging in sexual activity. Consent must be communicated; it cannot be assumed. We can see here a fundamental shift in attitude. It is literally a cultural change—but a very healthy one. The bill will require that for a person’s belief in consent to be reasonable that person must have taken steps by saying or doing something to find out if the other person consents. Simply, it must be clear and enthusiastic for it to go ahead, and I think that is only fair and reasonable. Under the existing law for offences such as rape and sexual assault, the prosecution must prove that the accused person did not have a reasonable belief that the complainant was consenting. These reforms will elevate the taking of active steps to a requirement in every case. So this will put greater focus on the accused person’s actions in sexual offence trials, rather than focusing on what the victim-survivor did to indicate they did not consent, and so therein we can see the shift. This is important because, as the VLRC highlights, complaints continue to be questioned on outdated notions about whether they fought back or said no.

What must be said or done to check if the other person consents will depend on the circumstances. This can include but is not limited to verbally asking and getting a yes; a physical gesture, like a nod; or reciprocating a move, such as removing clothing. A person must say or do anything a reasonable time before or at the time the act takes place. In most situations there is an expectation that this will be immediately before or at the time of the sexual act. In limited circumstances it may be appropriate to say or do anything at a slightly earlier time so long as consent continues to be present at the time of the act, but doing or saying something—for example, at a party—hours before will not be sufficient on its own. I think we can all clearly see the nuance but also the critical nexus there in terms of actually gaining consent to proceed. Even if a person meets the minimum requirements to take steps, their belief in consent must still be reasonable in all circumstances, for example, taking into consideration if the steps went far enough or if there were cues such as pushing away the accused’s hand or facial reactions. This means a judge or jury will still need to consider nuanced circumstances.

The language used in this provision reflects recent reforms in New South Wales and the ACT. We are confident this is the right policy landing but also see educative and cultural-change benefits in having consistency across jurisdictions. Clearly it is time for these reforms to be implemented, and we are certainly in step with where community is at as a whole.

There are many technical elements to this bill, I think in particular because of those nuanced elements and because of the seriousness of the nature of the reforms—they are wideranging and appropriate—so I will not today have time to be able to get into all those matters. However, I did want to outline the fundamental tenets of these essential changes. I just will make one note regarding the limited exception to saying or doing anything and issues such as cognitive impairment or mental illness. The bill provides a narrow exception to the requirement to say or do anything to address cases where the accused person’s failure to do this was substantially caused by a cognitive impairment or mental illness. This ensures a person with a serious diagnosed cognitive impairment or mental illness will not be unfairly disadvantaged by the new affirmative consent requirement. I think it is important to outline those kinds of parameters with this significant legislation. To be clear, the exception is not a loophole or a get-out-of-jail-free card. It will only apply if the impairment is a substantial cause of their failure to say or do anything. The exception will not apply where the cognitive impairment or mental illness is the effect of self-induced intoxication, such as that caused by alcohol or drugs. Even if the exception is made out, the decision-maker will still have to consider whether in all the circumstances the accused person has a reasonable belief in consent. This means that an accused can still be found guilty of the offence. And this exception, I should also point out, is consistent with New South Wales.

On that note, I am going to leave the discussion there, but that does not in any way sufficiently, can I say, lay on the table all aspects of this bill and certainly will not do justice to the bill and the tremendous reforms that are being brought through here. However, I did wish to acquit the fundamental tenets of the bill, and I hope that we have succeeded in getting that across today. Clearly now is the time.

Dr RATNAM (Northern Metropolitan) (15:35): I am pleased to rise to speak in support of the Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022. The reforms in this bill are extremely important for the women and gender-diverse people of Victoria. I want to acknowledge the work and the commitment of the Attorney-General in developing this bill and ensuring its debate in this term of Parliament and of course the many victim-survivors of sexual abuse who have been campaigning for these reforms for many years and who will continue to press for the reforms necessary to ensure justice.

The introduction of affirmative consent provisions in the bill is an acknowledgement that our current laws are no longer fit for purpose when it comes to holding perpetrators to account for sexual assault and that too many victim-survivors are being let down by the justice system. We still routinely hear stories of victim-survivors of sexual assault—overwhelmingly women—who have been failed at every step of the way by the justice system, by police who do not believe them or who know the chances of conviction in the courts are low, lawyers who engage in intrusive and aggressive cross-examination about their behaviour and a system that is tilted against victim-survivors.

The reality is prosecuting crimes of sexual assault can be deeply retraumatising for victim-survivors. Less than one-fifth of sexual offences reported to police result in a conviction in court. The vast majority do not progress past the police investigation stage, and of course most sexual offences are not reported at all. The Victorian Law Reform Commission, in their report that initiated the reforms we are debating today, noted that about 87 per cent of people who experienced sexual violence do not report it to the police, meaning that the actual number of sexual offences that are tried and convicted is less then 3 per cent.

The true extent of sexual violence in our community is much greater and much more concerning than those statistics would suggest. Some suggest less than 1 per cent of sexual assaults result in convictions. The reforms in this bill are an important step in addressing this injustice. They aim to improve how the justice system responds to sexual offences, ensure that perpetrators are held to account and empower more women to seek justice, because we know women disproportionately experience sexual violence. One in five women—that is about 18 per cent in Australia—report that they have experienced sexual violence. Of all sexual offence victims recorded by Victoria Police from March 2021 to 2022, 86 per cent were women.

This bill is implementing recommendations from the Victorian Law Reform Commission’s report, Improving the Justice System Response to Sexual Offences, the primary one being to introduce an affirmative consent model into Victorian law. The VLRC found that the legal system rarely considered whether the accused had actually done anything to find out whether the other person consented. Instead the focus too often was on what the victim did or did not do to lead the accused to believe they had consented. Affirmative consent requires that a person takes active steps to confirm consent to a sexual act. It puts the focus back on the accused and ensures that both parties have a responsibility to ensure that they give and receive consent.

Affirmative consent must be active in that a person must say or do something to confirm that they have received consent to an act. It may be verbal or non-verbal, but it cannot be assumed and it must be confirmed at a reasonable time prior to the act. The bill makes it clear that a person does not consent just because they do not resist the act verbally or physically, acknowledging that the act of freezing is an extremely common response to sexual assault but is all too often interpreted as a sign that the person wanted it or consented. The bill also specifies that a person does not consent to an act just because they have previously consented to other acts with the same or other persons—again, an attempt to correct damaging stereotypes and misconceptions about the behaviour of women that too often influence how sexual assault allegations are treated by the law.

The bill sets out five additional circumstances where a person does not consent in addition to the existing ones in law. There is no consent where a person submits to or engages in the sexual act due to force, harm or fear of force or harm of any kind, including psychological or financial harm experienced as part of family violence. There is no consent if a person engages in an act due to coercion or intimidation, abuse of a relationship of authority or trust or the false or misleading representations about payment for commercial sexual services. There is no consent if a condom is not used or is removed or tampered with where there is a belief that the condom would be used. This is what is commonly known as ‘stealthing’, a really insidious form of sexual assault which disproportionately affects women, gender-diverse people and men who have sex with men. A Melbourne study that my colleague in the other place Dr Tim Read co-authored in his former professional life finds that almost a third of women and one in five gay men have experienced non-consensual condom removal, yet as it was not explicitly criminalised it is not well understood as a form of sexual assault. We are pleased to see this explicitly included as a sexual offence in this legislation.

The bill also amends Victoria’s image-based sexual offences, where intimate images of a person are distributed or threatened to be distributed without a person’s consent. These offences, which include revenge porn, are increasingly prevalent in our community, with nearly one in four Australians aged 16 to 49 experiencing image-based sexual abuse.

The bill amends the definition of an intimate image to include an image that depicts the breasts of a transgender or intersex person identifying as female. While this is intended to ensure people of diverse genders are covered by the offences, the second-reading speech does note that:

… there is more work to be done to improve the inclusivity of language relating to gender and gender identity in the Crimes Act and Victorian legislation more broadly.

My office has heard concerns from the LGBTIQA+ community that this language is non-inclusive and does not effectively protect people of all genders from intimate image abuse. The Greens have prepared amendments to strengthen this definition and ensure it is more inclusive, and I am happy for those amendments to be circulated now, please.

Greens amendments circulated by Dr RATNAM pursuant to standing orders.

Dr RATNAM: As my colleague Tim Read noted in the other place, we know that legislative change is just one tool available to us in creating behaviour change, and while the justice system is an important tool, it cannot be the only one. There is more work to do to improve how the justice system handles sexual offences, including implementing restorative justice models and truth telling. We still need to do more to improve sex and relationships education for young people and to encourage healthy, respectful relationships at a young age, and we need to continue listening to the voices of women, believing women and empowering them to lead reform to stamp out sexual violence. We hope that this bill is the next step in the continuing journey of empowering and eliminating sexual violence in our community.

Mr LIMBRICK (South Eastern Metropolitan) (15:43): I am pleased to rise and speak today on the Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022. The Liberal Democrats will not be opposing this bill. However, I do have some concerns, and we have some caution in our approach to it. It is unusual in the fact that the principles behind this bill we are extremely supportive of—very supportive of in fact—but we have concerns about some of the practicalities of it. Firstly, around the issue of consent, this is something that libertarians talk about a lot—the idea that actions are taken voluntarily and free from coercion. It is right that what is being laid out in the bill is to ensure that effectively there is a contract in place so that there is some sort of understanding of the sexual activity that is about to take place, that consent is established and that if there is a breach of that contract—and there are several examples that are also included in this bill—that becomes an offence.

One of the breaches of contract which is included in this bill is what is referred to as ‘stealthing’, or the removal of a condom unknowingly, with the understanding that one would be used, when it is taken off during the act without one of the partners consenting to that. It is right that this should be an offence. Exposing someone to the threat of disease or pregnancy without their consent is absolutely abhorrent, and it is right that that should be an offence. I do note that there have been some concerns that this may be covered under existing offences anyway, but nevertheless the idea of having this as an explicit offence is useful. My main concern with this offence, however, in practical terms is about misunderstandings that might happen and potentially criminalising what could have been a miscommunication between people or a misunderstanding or an accident. I do have concerns about that, and I will be asking some questions about that in the committee stage, but conceptually I have no problem with this.

One of the other breaches of this contract that is being talked about, the breach of consent, is for non-payment for sexual services where there was an understanding that some act would take place for payment and then that payment was not provided. That is already covered under existing legislation as a different offence, but that is going to become, I believe, rape under this bill. Again, there is a clear breach of a contract, which invalidates the consent, and therefore it is right that that should be an offence.

Some of the other things in here include using someone’s explicit images without their consent. Again, this is an abhorrent act. I have read many awful stories and spoken to some people who have had this happen to them. It is absolutely very, very traumatising. Again, I have concerns about how this might be enforced. I have serious concerns about that, and I look forward to hearing the government’s explanations in the committee stage on how this might be enforced, because once something gets out there on the internet it is pretty hard to pull it back. Nevertheless those that initiate something like this against someone without their consent—it is absolutely abhorrent, and it is right that they are punished through an offence for that.

I cannot have all these conversations about consent without talking about some of the other things that the government has done which violate consent, things like sharing medical information. We recently had a bill that has not passed yet, but we have had bills go through that explicitly take away people’s consent on medical information, and then of course there is the other issue that I have been going on about for ages, which is mandates. Nevertheless it is good to see the government talking about consent, and I am very happy that we are starting this.

I would echo Dr Ratnam’s comments, though: I do not believe that this very, very serious part of the crime spectrum is the only answer. I think more needs to be done on restorative justice programs, and I would like to see more action on this from the government to cover a wider range of offences. It has been conveyed to me that this type of offence is in the very, very serious category, but there needs to be a spectrum of responses that can happen from the legal system. I think restorative justice is clearly one that could be applicable in this space, and I would look forward to hearing any further developments that the government might be planning in that space.

Overall, despite some of these concerns about the possibility of accidental criminalisation and some issues around how these things might actually be enforced, legislating this type of consent model philosophically I have no problem with and, as I said, we will not be opposing this bill.

Dr BACH (Eastern Metropolitan) (15:49): I move:

That debate on this very important bill be adjourned until the next day of sitting.

Motion agreed to and debate adjourned until next day of meeting.