Improving the Justice System Response to Sexual Offences: Report (html)

14. Legal definitions of sexual violence

Overview

• Sexual offence laws define what kinds of sexual violence are crimes. Victoria’s sexual offence laws were reformed in 2015.

• A lack of consent is a key element of rape. How consent is defined and the fault element for rape should be reviewed. We should move to a stronger model of affirmative consent.

• It is a crime to remove a device such as a condom without consent, but this needs to be made explicit in the definition of consent.

• Image-based sexual abuse is a growing problem and can result in serious harm. Victoria’s laws need to recognise its seriousness by increasing the powers for these offences.

• The sexual offence laws reformed in 2015 need to explain how those offences apply in cases before the reformed offences commenced (also known as ‘transitional provisions’).

• Recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse in relation to child sexual abuse offences should be implemented.

Victoria’s sexual offence laws are strong, with room for improvement

14.1 Sexual offence laws make it a crime to commit various kinds of sexual violence, such as to touch someone sexually or sexually penetrate them without consent. For example, rape covers sexual penetration without consent. The maximum sentence for rape is 25 years imprisonment.^[3]

14.2 The way sexual offences are defined sets standards for behaviour. The way they are defined shapes the community’s understandings of sexual violence. Sexual offences set the boundaries for what sexual interactions are acceptable in society. As the Crimes Act 1958 (Vic) states, the aim of the laws is ‘to uphold the fundamental right of every person to make decisions about [their] sexual behaviour and to choose not to engage in sexual activity’.^[4]

14.3 The way sexual offences are defined can help, or make it more difficult, to investigate or prosecute someone for sexual offending. Having sexual offences that are defined well supports an effective justice system response to sexual violence.

14.4 Victoria’s sexual offences were recently revised to make them as ‘clear, simple, consistent and effective as possible’.^[5]

14.5 In our issues paper, we asked if there was a need to change any of these offences or to create new offences to address existing or emerging forms of sexual violence.^[6] We heard the 2015 reforms were working well but could be clarified. In this chapter we identify key ways to strengthen them.

What are Victoria’s sexual offences?

14.6 In this chapter, we use the term ‘sexual offence’ to describe sexual violence that is criminalised. The main sexual offences in Victoria are set out in Table 14.

Table 14: Sexual offences in Victoria

14.7 Sexual offences may occur in broader contexts of violence and abuse. They can occur as part of family violence or sexual exploitation.^[21]

14.8 People may commit sexual offences together with other state or federal offences (for example, forced marriage, female genital cutting or stalking).^[22]

14.9 Sexual offences can be ‘indictable’ (serious crimes mostly tried in the County Court of Victoria) or ‘summary’ (less serious crimes mostly tried in the Magistrates’ Court of Victoria).^[23] Most indictable sexual offences can be heard and determined summarily in the Magistrates’ Court of Victoria, except offences such as rape and sexual penetration of children.^[24]

Consent is a key factor of sexual offences

Victoria has a model of communicative consent

14.10 For many sexual offences involving adults, a lack of consent is a key part of the offence.^[25] For these offences, the prosecution must prove the following elements related to consent:

• that the complainant did not consent to the sexual act (a ‘physical element’)

• that the accused did not reasonably believe in consent (the ‘fault element’).^[26]

14.11 Victoria’s laws are based on a model of ‘communicative consent’ (see box).^[27] This model is reflected in:

• the definition of consent as ‘free agreement’ ^[28]

• circumstances in which consent is not freely given (for example, there is no consent if a person did not say or do anything to indicate consent) ^[29]

• the requirement that the accused did not reasonably believe in consent^[30] (the fault element).^[31]

14.12 Consent that needs to be communicated is also part of the ‘affirmative consent’ model.^[35] There are different interpretations of affirmative consent.^[36] Affirmative consent may be described as a ‘yes means yes’ approach, where consent is actively and positively expressed by the person giving it. Some commentators also say ‘enthusiastic consent’ must be obtained by the initiator of sexual activity under this model.^[37]

14.13 Rachael Burgin argues:

Affirmative consent requires that a person demonstrates willingness to engage in a sexual act either verbally or through their actions. The onus is on the initiator of sex to take steps to ensure that the other party(ies) is consenting. Consent is ongoing and performative; indications of consent must be actively given before and during the sexual act.^[38]

14.14 Requiring a person who is seeking to engage in sexual activity to find out if the other person has clearly expressed consent is viewed as a stronger model of consent than is currently the case. People who support this model say that it may shift the focus of the trial from the complainant’s behaviour to the accused’s actions.^[39]

What is the definition of consent?

14.15 Consent is defined in Victoria as ‘free agreement’. The law includes a list of some circumstances in which a person does not give consent (see box).

14.16 Judges are required to give directions to juries about consent. These include that a person who is not consenting to a sexual act might not protest or physically resist the act.^[40] Jury directions are discussed in more detail in Chapter 20.

What is a reasonable belief in consent?

What is the Victorian approach?

14.17 In its 2015 reforms to sexual offences, Victoria introduced a fault element of no ‘reasonable belief’ in consent (see box).^[41] This was explained as a ‘hybrid’ standard of reasonableness which:

does not involve the construction and use of a reasonable person. The test focuses on the accused’s belief and whether that belief was reasonable in the circumstances. This approach will involve considering some of the accused’s particular characteristics and the circumstances of [their] situation. The standard then becomes a matter of what it would be reasonable for a person with those relevant characteristics and in that situation to believe.^[42]

14.18 This fault element replaced the previous three alternative fault elements.^[43] These fault elements were seen to be unclear and complex. They led to many convictions being overturned on appeal. The Victorian Government explained in its review that there was ‘also concern that … the offence is too narrow because it does not criminalise situations where the accused’s belief that the complainant consented is unreasonable in all the circumstances’.^[44]

14.19 In introducing the new fault element, the Victorian Government stated that it largely followed the law in the United Kingdom and the approach is similar to that used in New Zealand and New South Wales.^[45]

14.20 The law does not impose a duty or requirement on a person to ‘take steps’ to find out if the other person is consenting.

14.21 The law leaves it to the jury to assess the circumstances in which someone’s belief is reasonable. Guidance from other cases in places with similar laws suggests that this focuses on matters over which the accused has no control—it tends to not include a person’s values or character. For example, these could include the age of the accused, or any disability affecting their capacity to understand the situation.^[46]

14.22 The aim of introducing into the law the circumstance of ‘any steps’ taken was to provide ‘helpful guidance to jurors by drawing attention to the importance of examining the accused’s conduct in assessing the reasonableness of [their] beliefs’. The report explained that, while the law did not impose a legal duty or requirement to take active steps, this would be a factor for the jury to take into account.^[47]

14.23 In the ‘usual case, such a failure will count strongly against the belief being a reasonable one’, and an accused ‘is very unlikely to evade conviction by arguing that, while [they] did not try to find out if the other person consented’, they assumed the other person was consenting because the other person hadn’t said or done anything to suggest otherwise. ^[48]

14.24 The law leaves it to the jury to assess the kinds of steps that would be appropriate. For example, the report explaining this reform said a longstanding intimate relationship between people may involve steps that are subtle and non-verbal. If the person is a stranger, then ‘much more clear and explicit steps’ will usually be expected.^[49]

What is the law in other places?

14.25 A similar definition of consent is used elsewhere in Australia. For example, New South Wales defines consent as meaning a person ‘freely and voluntarily agrees to the sexual activity’.^[50] The New South Law Wales Reform Commission recommended that consent should continue to be defined this way and that consent ‘must exist at the time of the sexual activity’.^[51]

14.26 In Queensland, consent is ‘freely and voluntarily given by a person with the cognitive capacity to give the consent’.^[52] The Queensland Law Reform Commission did not recommend any changes to this definition.^[53]

14.27 As noted above, Victoria’s ‘reasonable belief’ requirement is based on similar provisions in England and Wales. Other places similarly direct that any steps should be taken into account, rather than requiring a person to take steps.^[54]

14.28 Different approaches exist elsewhere. In Canada, an accused cannot use the defence of belief in consent if, among other things:

the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.^[55]

14.29 In Tasmania, the law states that ‘a mistaken belief by the accused as to the existence of consent is not honest or reasonable’ if, among other things, the accused ‘did not take reasonable steps, in the circumstances known to him or her at the time of the offence, to ascertain that the complainant was consenting to the act’.^[56]

14.30 Victoria does not have a defence of ‘mistaken belief’ in consent. Instead, an accused person will rely on the jury deciding their belief in consent was reasonable.^[57]

What are the key issues with consent?

14.31 In our issues paper, we asked how well Victoria’s model of ‘communicative consent’ was working and whether there was any need to improve the law of consent in Victoria.^[58] We heard several suggestions for strengthening the definition of consent, including the requirement to take steps to find out if there is consent.

There are a range of ideas to make the definition of consent stronger

Making consent ongoing could strengthen the definition

14.32 Sexual Assault Services Victoria (SAS Victoria) and others suggested that the definition of consent should be improved. Several researchers recommended defining consent as agreement that is ‘ongoing, actively communicated, prioritises mutual pleasure, and care for the self and others’.^[59] SAS Victoria also supported a model that emphasised the need for mutual, continuous and ‘enthusiastic’ consent.^[60]

14.33 Bravehearts supported including a model of affirmative consent in the law, and emphasised that consent should apply only to the time it was given, not to any future sexual activity.^[61]

14.34 Dr Steven Tudor said that there should be no consent if the person ‘does not continue saying or doing something to indicate ongoing consent to the sexual act’. This would cover situations where there is no positively communicated withdrawal because, for example, someone ‘freezes’ and finds themselves unable to say or do anything to withdraw consent. This could be achieved by adding a note to the existing provision that a person does not consent to an act if ‘the person does not say or do anything to indicate consent to the act’.^[62]

14.35 We also heard that the language of ‘withdrawing’ consent undermines the model of communicative consent. Rape & Sexual Assault Research & Advocacy (RASARA) told us that in this model, ‘the onus is on the initiator of sex to actively seek ongoing consent’, and that there should be ‘no requirement on a person to demonstrate non-consent at any time’.^[63]

The definition of consent could adapt to the sex industry

14.36 Project Respect told us that consent should be defined in a way that made it clear how this applied to people providing sexual services, and also to those affected by the use of substances in the context of work. It told us that clients wrongly believe ‘they have the power to do whatever they like with the women during the bookings given they paid for it’.^[64]

14.37 Women working in the sex industry told us they experience high levels of sexual violence and that this could partly be because a client felt entitled to sexual activity. They explained that people ‘pay sex workers for things that they cannot do in other places or in their private lives. Workers are not seen as people by nature of this exchange.’^[65]

14.38 Sex Work Law Reform Victoria suggested changing the law to include a section similar to that in New Zealand that clarified the role of consent in the sex industry.^[66] This states ‘the fact that a person has entered into a contract to provide commercial sexual services does not of itself constitute consent for the purposes of the criminal law if he or she does not consent, or withdraws his or her consent, to providing a commercial sexual service’.^[67]

Proving consent can be challenging

14.39 Victoria Police told us that there were challenges with how consent laws are interpreted and operate in practice, and that victim survivors are still often required to demonstrate they did not consent through ‘active resistance’. This was reflected both in the decisions to continue investigations and in court processes, especially cross-examination.^[68]

There were concerns about how ‘no reasonable belief in consent’ was applied

14.40 Several researchers told us that the research showed that the way an accused interpreted everyday behaviour was used to establish a ‘reasonable belief’ in consent in ways that reinforced ‘problematic understandings of gender and consent’. For example, an accused could use the clothing or tone of voice of a victim survivor to argue that he had a ‘reasonable’ belief.^[69]

14.41 Victoria Police stated that the fault element of ‘reasonable belief’ in consent is ‘often problematic for police to overcome’ and ‘is a common reason and contributing factor for police in determining whether to authorise charges’. ^[70]

14.42 The Office of Public Prosecutions highlighted a ‘troubling’ recent case heard on appeal (see box). It told us that the way the law was applied in this case set a ‘low bar’ for communicating consent that would make it very difficult to prosecute similar cases, and one that was ‘arguably not in the spirit’ of the legislation.^[71]

Should there be a requirement for a person to ‘take steps’?

14.43 There were mixed views on whether the ‘taking steps’ part of the definition of the fault element should be strengthened by requiring a person to take steps to find out if there was consent.

14.44 A requirement for a person to take steps is thought to strengthen the model of ‘affirmative consent’. Affirmative consent is the standard used by colleges and universities in some places in the United States to respond to sexual assault on campus.^[73]

14.45 As mentioned above, under this standard, people would have to take active and positive steps to find out if there is clear (or, in some versions, ‘enthusiastic’) consent before and during sexual activity. If someone acts ambiguously or inconsistently about their consent, then the person initiating the sexual activity should make further inquiries to find out if there is consent.^[74]

What we heard about the advantages of requiring someone to ‘take steps’

14.46 RASARA, SAS Victoria, Rape & Domestic Violence Services and several researchers supported requiring a person to demonstrate the steps they had taken to obtain consent during the encounter.^[75] Some stakeholders supported the Tasmanian approach, in which a belief in consent is not honest nor reasonable if the accused ‘did not take reasonable steps in the circumstances’ to ensure the other person was consenting.^[76] 

14.47 Requiring people to take steps to find out if the other person consented can shift our understanding of what consent involves before and during sexual activity. It puts a stronger burden on the person who initiates sexual activity to obtain consent and strengthens the affirmative consent model. This is viewed as a progressive step towards behavioural and cultural change.^[77]

14.48 We heard that it remained too common for trials to focus on the conduct of the complainant and whether they fought back or said ‘no’ (see box).^[78] A requirement to ‘take steps’ could help to shift this focus on to the conduct of the accused.^[79]

14.49 It could also reduce defence arguments based on narratives of ‘implied consent’, where ordinary behaviour is misinterpreted as consent to sexual activity. RASARA provided examples of behaviours such as sitting on the arm of the accused’s chair and touching the accused’s knees that had been used to support an argument that there was ‘reasonable belief’ in consent.^[80]

What we heard about the disadvantages of requiring someone to ‘take steps’

14.50 The Judicial College of Victoria (JCV) and some experts told us the law on ‘taking steps’ did not need to be changed.^[81] The JCV told us that the law already requires the jury to pay attention to whether the accused took steps. This is achieved by considering the circumstances, which include any steps taken. There is also a jury direction to consider ‘what the community would reasonably expect of the accused in the circumstances in forming a reasonable belief in consent’.^[82]

14.51 Dr Steven Tudor told us that, while the idea of including such a provision might sound appealing, it would make the law more complicated and lead to more appeals (see Chapter 19). Nor would it make the task of the jury easier or increase the chances of a conviction. Further, even though a ‘normally decent’ person should take steps to find out if the other person consented, the criminal law was not a code for good behaviour and attempts to insert good behaviour in laws designed to define criminal behaviour was ‘fraught with difficulty’.^[83]

14.52 Greg Byrne PSM argued that, while taking reasonable steps was relevant to whether a belief was reasonable, as is the law in Victoria, it should not be elevated to becoming an element of the offence. This would have the effect of making sexual activity only lawful once steps were taken, and criminalise someone who failed to take reasonable steps although they had a reasonable belief in consent.^[84]

14.53 It has been argued that ‘an affirmative consent provision’ that requires a person to find out if there is ‘explicit permission to have sex’ could in effect make sexual offences ‘absolute liability’ offences, where the state of mind of the accused (the fault element) is not relevant.^[85] This could operate unfairly, depending on the circumstances. Dyer gives the following example:

… take the accused with an intellectual disability, or with Asperger’s Syndrome, who has non-consensual intercourse with another person, in circumstances where that person was silent because s/he was scared and the accused has not deliberately caused such fright—but also has failed to ‘find out’ whether the other person is consenting. Should such an accused be convicted of sexual assault? If an affirmative consent provision were in force, s/he would be. … Because of such an accused’s disability, however, it might not occur to him/her that there is a risk that the complainant is not consenting—or that there is any need to ask whether s/he is. It might be quite reasonable for him/her to believe that consent has been granted. Should we convict a person of a serious crime because s/he fell short of a standard that s/he was quite unable to reach?^[86]

14.54 Other concerns have been raised elsewhere about requiring people to ‘take steps’. For example, forcing people to take active steps may fail to reflect the nature of much consensual sexual activity.^[87] While taking steps to find out of if there is consent is something people should do, some do not see the role of the criminal law as promoting good behaviour. Rather, its role is to punish wrongs.^[88]

14.55 On the other hand, some people may appear to agree through words or actions because they are afraid or being coerced. While the law recognises circumstances in which consent cannot be given, focusing on the words or actions of consent may draw the focus away from a victim survivor’s state of mind and the broader context.^[89]

14.56 It is also unclear if a requirement to take steps will shift practice. As noted earlier, Tasmania includes a requirement for steps, but in the context of a defence of mistaken belief.^[90] Research from Tasmania indicates that this may not be changing outcomes in practice. For example, misconceptions about sexual violence that are at odds with affirmative consent continue to play a role in trials. Prosecutors may not present theories of what occurred to the jury (case theories) that align with the affirmative model of consent, and judges may not direct the jury to correct any misconceptions.^[91]

14.57 The position is different where, as in Victoria, there is no defence. Requiring steps in that context may place a burden on the accused to show evidence of consent, reversing the usual burden of proof.^[92] This would have implications for the right to a fair trial and will need careful consideration.^[93]

14.58 Even with a requirement, jurors may still focus on the conduct of the complainant instead of what the accused did to find out if the other person was consenting.^[94] This may occur when the accused exercises their right to silence and does not give evidence. Also, few cases may focus on the accused’s reasonable belief in consent (see box below).

14.59 Finally, any change to the law could introduce more complexity and could result in more appeals.^[95] Appeals have the potential to further traumatise complainants and add to delays (see Chapter 19).

What changes are happening in Australia and overseas?

14.60 Reviews in Ireland, Northern Ireland and in New South Wales have not recommended including a requirement for a person to show they took steps to find out if the other person consented (see box).

14.61 While the New South Wales Law Reform Commission did not recommend requiring steps, in May 2021 the New South Wales Government announced it will go further ‘by clarifying that an accused person’s belief in consent will not be reasonable in the circumstances unless they said or did something to ascertain consent’. This is intended to introduce an affirmative model of consent.^[101]

14.62 This announcement has generally been received positively and commended for advancing an affirmative standard of consent.^[102] On the other hand the New South Wales Bar Association stated the potential change could result in significant injustice.^[103] At the time of writing, a Bill changing the law has not been introduced.

14.63 The positive responses to the New South Wales Government’s announcements indicate that people are expecting more from the law.

14.64 Dowds notes:

rather than rejecting the requirement that the [accused] take steps, or that they say or do something, to ascertain consent, we [should] revive and reformulate it so that it is central, rather than peripheral, to our evaluations of criminal and non-criminal sexual conduct.^[104]

14.65 In the Australian Capital Territory, a Bill has been introduced to amend the definition of consent and the fault element of sexual offences. Consultations on this Bill will take place in July 2021. Many of the proposed amendments mirror Victoria’s current laws.

14.66 However, the exposure draft of the Bill proposes a different approach to taking steps that takes it beyond a consideration for the jury, so that:

without limiting the grounds on which it may be established that an accused person’s belief is not reasonable in the circumstances, the accused person’s belief is taken not to be reasonable in the circumstances if the accused person did not say or do anything to ascertain whether the other person consented.^[105]

14.67 In June 2021, the Australian Government announced a national initiative involving state and territory governments (see Chapter 1) that will include ‘a national discussion about the definition of consent and circumstances where consent is not given’.^[106]

We recommend moving towards a stronger affirmative model of consent

14.68 Moving towards a stronger model of ‘affirmative consent’ could provide meaningful and effective change to the law of sexual offences. Sexual offending remains far too common in the community (see Chapter 2) and changing the law sends a powerful message. It is also clear from our transcript analysis that, too often, complainants are still the ones being put ‘on trial’ (see above box).

14.69 We have noted the largely positive reception of the proposed model in New South Wales and the shifting support towards an affirmative model of consent.

14.70 While we support a stronger model of affirmative consent in principle, we do not consider that it is appropriate to design how this should occur in this inquiry. There is a need for thorough consultation to assist with developing a model.

14.71 Consent to sexual activity is integral to a person’s sexual autonomy. Consent affects everyone who chooses to engage in sexual activity. Changes to the law should involve broad and diverse consultation. For example, we were told that ‘consent is contextual’ and the law of consent was based on ‘a model of sexual relations that failed to properly take into account queer sexual practices’.^[107]

14.72 Timing is important regarding this issue. Public debate about consent has moved on quickly. It would be ideal to take into account and take advantage of both the state developments and national discussion about consent now underway.

14.73 We recommend in principle that the government should review the fault element of consent and other aspects of consent to move towards a stronger affirmative consent model. In reviewing the fault element, the government should consider how to introduce a requirement for a person to ‘take steps’ to find out if there is consent, and other aspects of consent relevant to this. We have set out all the issues stakeholders identified to inform this further review.

14.74 We note, however, several issues that should be given more thought in the proposed review. The definition of consent is intertwined with the fault element of ‘no reasonable belief in consent’. Both aspects will need to be reviewed to move towards a stronger affirmative consent model. The law may need to provide a level of clarity about what should count as a reasonable step to find out if there is consent without being prescriptive. This will involve thinking through the different and nuanced ways people find out if there is consent to sex. It will also involve crafting the law in a way that does not unfairly punish accused people such as those with cognitive disabilities.^[108]

14.75 It is also important to integrate the law into community education to foster broad cultural change. People need to know what the law says about consent and sexual activity.

14.76 Any change to the law should be coupled with training and education for people working in the criminal justice system—changes are unlikely to be effective if people working in the criminal justice system, such as police or lawyers, do not make decisions or conduct trials in line with the aims of the law.

Should ‘stealthing’ be criminalised?

What is stealthing?

14.77 The law in Victoria does not make it a clear that it is a crime to remove without consent a contraceptive device or a device to prevent sexually transmitted infections, such as a condom.^[109] Such behaviour, commonly referred to as ‘stealthing’, has been described as a violation of consent.^[110]

14.78 People have been charged for this behaviour under offences such as rape, sexual assault, and ‘procuring a sexual activity by fraud’.^[111] It can also be a form of ‘birth control sabotage’ (also known as ‘contraceptive control’ or ‘reproductive coercion’).^[112]

14.79 This kind of behaviour is mostly perpetrated by men against women, as well as by men who have sex with men.^[113] There is little research on how common this behaviour is.^[114]

14.80 Some of the available research indicates that people who work in the sex industry may be more likely to experience this behaviour.^[115] Project Respect, which works with women in the sex industry, told us that this ‘form of sexual assault is increasing exponentially’.^[116]

14.81 This kind of behaviour can cause significant harm and trauma. For example, infections and viruses may be transmitted, and it may cause an unintended pregnancy. The trauma and distress may be ‘reinforced by the ambiguity regarding the legality of what has occurred’. ^[117]

The law relating to stealthing could be clarified

14.82 There was broad support for making it clearer how the criminal law applied to this kind of behaviour.^[118] Defining or recognising this behaviour as a sexual offence will help people to identify it as a criminal act and make it more likely that they will report it as a crime.^[119]

14.83 For example, Project Respect told us:

Women disclosed that they were not supported by management in these circumstances. They reported the client was often given their money back by management after making a complaint when the woman stopped the booking, or, the woman was forced back into the booking to complete, despite the assault that had transpired. Reports from women indicate that a majority of managers do not perceive the removal of a condom as sexual assault and due to this, it is highly underreported.^[120]

14.84 There are several ways the law could recognise or clarify the nature of this behaviour:

• introducing a separate offence

• clarifying that this conduct is a circumstance in which a person does not give consent^[121]

• clarifying that this conduct falls within the offence of ‘procuring sexual activity by fraud’^[122]

• introducing a new tort.^[123]

14.85 We heard most support for listing this conduct as a circumstance in which consent is not given.^[124] The County Court of Victoria supported a stand-alone offence.^[125] Another suggestion was to clarify that this conduct amounted to the offence of ‘procuring sexual activity by fraud’.^[126]

What is the law elsewhere?

14.86 This issue has been considered in New South Wales and Queensland.

14.87 The New South Wales Law Reform Commission recommended treating this behaviour as a circumstance in which consent cannot be given for the offence of rape:

The [New South Wales] Crimes Act should provide that a person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity.

For example, a person who consents to sexual activity using a condom is not to be taken, by reason only of that fact, to consent to sexual activity without using a condom.^[127]

14.88 The Queensland Law Reform Commission found that there ‘may well be merit in considering whether this practice should be specifically dealt with as an offence in its own right’. It did not recommend including the practice in the list of circumstances in which consent was not taken to have been freely and voluntarily given.^[128]

14.89 In the Australian Capital Territory a Bill has been introduced to address this behaviour. The Bill inserts the following as a circumstance where there is no consent by law, if any consent to sexual intercourse or an act of indecency was caused:

by an intentional misrepresentation by the other person about the use of a condom.^[129]

The law should make clear there is no consent

14.90 We recommend a similar approach to that proposed by the New South Wales Law Reform Commission. When someone consents to sexual activity, that consent includes the circumstances in which consent is given. This includes whether someone is using a contraceptive device or device to prevent sexually transmitted infections (STIs). If that circumstance for which consent is given changes, there is no longer consent.

14.91 This is consistent with the communicative model of consent. As Dr Natalia Antolak-Saper explained:

for the purpose of criminalisation the focus ought to be primarily on the autonomy of an individual consenting to sexual activity with the use of a condom. The central element in sexual offences is the element of consent which transforms what would otherwise be lawful conduct into a criminal offence.^[130]

14.92 There may be advantages to a separate offence. Some people may consider this a different type of harm to rape and sexual assault. People who experience this form of sexual violence could find labels of ‘rape’ or ‘sexual assault’ stigmatising. Standard sentencing requirements for rape and sexual assault would limit sentencing options.^[131]

14.93 However, there are disadvantages to a separate offence. Creating a separate offence can suggest that this behaviour is less serious than rape or sexual assault and fails to properly recognise what consent means. Further, we are conscious of the challenges associated with creating new sexual offences, including issues with interpretation and possible appeals.

14.94 We therefore recommend introducing a new circumstance that makes clear consent cannot be present where a person:

• having obtained consent from another person to engage in sexual activity with an STI-prevention or contraceptive device

• does not use, disrupts or removes this device without the other person’s consent.^[132]

14.95 This will clarify what behaviour is criminalised. The language should be inclusive of the different devices people use to protect themselves during sexual activities. People may use condoms to prevent STIs, not just for contraception. People may also use other protective devices such as dental dams.^[133]

14.96 The language should be confined so that there is a clear link between consent and these devices, so that it does not open up questions about broader conditions that may be placed on consent (for example, representations about the religious beliefs of the other person).^[134]

14.97 It is important to increase community awareness and education about this change, so that the law translates into practice. People need to know that stealthing is a crime. We make recommendations for community education about sexual offences, with a focus on consent, in Chapter 3.

How can the law on technology-facilitated sexual offences be improved?

14.98 In our issues paper, we asked how well the law of technology-facilitated sexual offences is working, and if any improvements are needed.^[135]

14.99 ‘Technology-facilitated’ offending is a term capturing a broad spectrum of sexual violence, including:

• technology-enabled sexual aggression, harassment or stalking

• the use of technology to commit contact-based offences such as rape or sexual assault

• taking or sharing of, or threats to share, nude or sexual images without consent (also known as ‘image-based sexual abuse’)

• unwanted or unwelcome online conduct that is sexual in nature, such as online requests for sex, image-based harassment (for example, receiving unwanted sexually explicit images), and rape threats

• online child sex offences, such as grooming in a virtual environment, and offences for producing, possessing and distributing child exploitation material.^[136]

14.100 The widespread use of technology means that it is easier than ever to commit sexual offences.^[137] Although anyone can be affected by image-based sexual abuse, women are affected more.^[138] People who work in the sex industry are also affected by technology-facilitated offending.^[139]

14.101 In this section we recommend making image-based sexual abuse offences indictable. We also note other issues about technology-facilitated sexual offences.

What are image-based sexual abuse offences?

14.102 Image-based sexual abuse involves sharing and distributing intimate images without consent. Image-based abuse comes in forms commonly described as:

• revenge pornography^[140]

• upskirting—taking photos of the genital area when a person thinks it is hidden ^[141]

• deepfakes—making or distributing digitally altered intimate images.^[142]

14.103 These forms of image-based sexual abuse can occur in contexts such as family violence, sexual harassment, cyber-bullying, sextortion and coercive control.^[143] More than half of the cases in Victoria have been linked to family violence, and upskirting offences were commonly sentenced alongside sexual offences against children, often related to child pornography. ^[144]

14.104 In Victoria, image-based sexual offences are summary offences (see Table 15).

Table 15: Image-based sexual offences in Victoria

14.105 There are also relevant Commonwealth crimes. It is a crime under Commonwealth law to use a carriage service (for example, the internet) to menace, harass or cause offence, or to make available or disseminate ‘private sexual material’ through a carriage service.^[146]

14.106 The Australian Government regulates online behaviour through the Office of the eSafety Commissioner. The eSafety Commissioner can order the removal of intimate images posted online without consent, or fine someone for posting or threatening to post intimate images online without consent.^[147] If it happens repeatedly, this can also be an offence.^[148]

14.107 In New South Wales, similar offences have been created as indictable offences. The offences are also committed if a person is ‘reckless’ as to whether a person consented to the recording or distribution of the intimate image.^[149] They also make it an offence to record, and not just distribute, intimate images without consent. The laws give the court power to order the person who committed the offence to remove or destroy the intimate image.^[150]

14.108 A fault element of recklessness was recommended in a Commonwealth review,^[151] and in a National Statement of Principles relating to the Criminalisation of the Non-Consensual Sharing of Intimate Images.^[152]

Should image-based sexual abuse offences be indictable?

Image-based sexual abuse should be taken seriously

14.109 Rape & Domestic Violence Services Australia (RDVSA) and experts in technology-facilitated offences told us that image-based sexual abuse causes serious harm which is not reflected in the summary nature of Victoria’s offences. Victoria was one of the first states in Australia to make image-based sexual abuse a crime, but its law has not kept up with the research and knowledge about this kind of violence.^[153]

14.110 Image-based sexual abuse is common although widely underreported.^[154] RDVSA explained:

Image-based sexual abuse is a serious crime with many of the same devastating, recurring, and lifelong consequences endured by others who experience sexual violence. It has been described as ‘a pernicious and gendered form of sexual abuse, the prevalence of which has increased exponentially with the ubiquity of the smart phone.’ It is commonly used within the context of domestic and family violence and forms a continuum with other forms of sexual violence. Apart from resulting in complex trauma impacts, the sharing of intimate images may also lead to adverse consequences for the victim-survivor in relation to their reputation, employment and relationships. When perpetrated within the context of an abusive relationship, a threat to distribute intimate images may create a significant barrier for the victim-survivor to escape violence and seek support. The seriousness of image-based sexual abuse has historically been minimised in public discourse, law and policy.^[155]

14.111 Project Respect reported that people who work in the sex industry can experience:

threats to out and/or expose women by clients who have images, filming during bookings without consent, advertising/posting services and phone numbers online without consent and taking images of women and then using this as a form of power and control in situations of trafficking.^[156]

14.112 We heard that the definition of ‘intimate images’ should be updated to include digitally altered intimate images (‘deepfakes’).^[157] We also heard that it could be more inclusive of diverse genders.^[158] For example, the New South Wales definition of intimate images also includes the breasts of a ‘transgender or intersex person identifying as female’ and altered images.^[159]

14.113 Victoria Police and RDVSA supported increasing the maximum penalties and removing the limits that apply to summary offences.^[160] RDVSA noted, for example, that prosecutions for summary offences generally had to be commenced within 12 months, unlike indictable offences, including those which may proceed summarily.^[161]

14.114 Victoria Police told us that the fact these offences were summary limited its search and arrest powers, and its ability to gather evidence.^[162] A Sentencing Advisory Council report explains:

This creates some limitations on investigation and enforcement. In particular, police can, at any time and without warrant, apprehend any person who they believe on reasonable grounds has committed an indictable offence in Victoria. Arrests for summary offences, on the other hand, are restricted to circumstances closer to the actual commission of the offence. Given that warrantless search and seizure powers apply when executing an arrest, this inevitably limits the circumstances in which these powers can be employed. Additionally, although the Summary Offences Act 1966 (Vic) contains a specific power to issue search warrants in respect of IBSA [image-based sexual abuse] offences, it does not replicate the powers available in respect of indictable offences to access and search computer systems.^[163]

14.115 Victoria Legal Aid told us that it did not support creating new offences to address image-based sexual abuse, as the criminal justice system already provided a response. Instead, it supported increasing community understanding and awareness to increase reporting and reduce offending.^[164]

Image-based sexual abuse offences should become indictable

14.116 We agree that the image-based sexual offences should become indictable crimes triable summarily. This means that they can be heard in the Magistrates’ Court of Victoria.^[165] Making these crimes indictable would recognise the serious nature of these actions.

14.117 This will also resolve some issues identified by Victoria Police, such as the limits on police powers to investigate.

14.118 We exclude from this the offence of observing a person’s genital or anal region with a device (‘upskirting’). This offence is not technology-facilitated abuse (see above), as a ‘device’ can mean anything that can be used to observe a person’s genital or anal region such as a mirror.^[166] It is different from image-based sexual abuse offences because it does not involve the risk of intimate images being recorded and distributed without consent. We believe it is appropriate for this offence to remain a summary offence.

14.119 We also recommend the following changes in line with those in New South Wales:

• making it an offence to take as well as distribute intimate images without consent because, even where there is no threat or distribution, because people can suffer harm knowing that somebody has these images and may distribute them

• introducing a fault element of ‘recklessness’ as to consent for the taking and distribution of intimate images to capture, for example, a person who is probably aware that the other person did not consent to the image being taken or distributed

• defining ‘intimate’ to include people of all genders, including transgender people, and intersex people, and altered intimate images

• give courts the power to order the destruction of the intimate images.^[167]

14.120 We do not make recommendations to amend maximum sentences for these offences. But we do note that in New South Wales, the maximum penalty is three years imprisonment for taking, distributing and making threats to distribute.^[168] The Sentencing Advisory Council recently commented in its report:

In addition to the low rate of reporting, the attrition between recorded and sentenced offences is high, and sentences imposed for IBSA offending are low relative to the harms involved in more serious cases. Moreover, Victoria’s IBSA offences are contained in the Summary Offences Act 1966 (Vic) and have the lowest maximum penalties in the country for this type of offending. This most likely contributes to perceptions that IBSA is relatively minor offending compared to other criminal offences.^[169]

14.121 We recognise that there are risks in treating these offences more seriously than is currently the case. For example, we heard that children and young people use technology more often so these offences may be more likely to criminalise their behaviour.^[171] The Gatehouse Centre, which works with children, told us:

The development of healthy and responsible sexual identities is a complex process, often involving mistakes and misunderstandings. It becomes even more challenging when that development is occurring online. While it is vital that we protect all Victorians from online sexual harassment and image-based abuse, it is also important that we avoid unnecessarily criminalizing the mistakes of adolescent development.^[172]

14.122 On balance, we consider the risks can be reduced by improving community awareness and education. We make recommendations about raising community awareness and education about all sexual offences in Chapter 3.

14.123 In Chapter 13 we recommend an individualised and discretionary approach to registration of sex offenders and further protection for children and young people.

14.124 We recommend that police should continue to exercise discretion to caution children who commit these crimes, so that no criminal proceedings are brought. Formal cautions can be issued to children (10–17 years old) who commit crimes. The parent or guardian of the child must be present during the caution. Cautions for sexual and related offences are granted in exceptional circumstances. ^[173] We recommend that Victoria Police’s procedures should allow cautions to be issued for image-based sexual abuse offences committed by children and young people without the requirement for exceptional circumstances.

14.125 We also note that children and young people are tried in the Children’s Court of Victoria, which takes a more tailored approach to accused people. The sentencing of children and young people in the Children’s Court is different to the sentencing of adults. Sentencing focuses on rehabilitation and reducing stigma, while holding a child or young person accountable for their actions in a way that is suited to their age and capacity.^[174]

14.126 In New South Wales, perpetrators of image-based sexual abuse who are under 16 cannot be prosecuted without the Director of Public Prosecution’s approval.^[175] We recommend this approach as an additional safeguard in Victoria against the overcriminalisation of children who may commit these crimes.

14.127 We also recommend that the investigation of these offences should be handled by police who specialise in sexual offences (SOCITs). Victoria Police is supportive of this approach.^[176] To improve investigation, we note Victoria Police’s suggestion for a mechanism that would allow intimate images to be stored for future retrieval by law enforcement if the victim survivor wanted to report the crime. Even though the removal of these images is necessary, it can place victim survivors at a disadvantage if they want to pursue charges later on because of the loss of digital evidence.^[177]

14.128 These offences should be included within the definition of sexual offences in the Crimes Act 1958 (Vic). This will ensure that when matters go to trial, complainants are granted the protections available for sexual offences, such as providing evidence from a remote location via audio-visual link. We also recommend that they should have the right to have their identities suppressed.^[178] These protections would reduce re-traumatisation at trial.^[179]

14.129 Other arrangements for giving evidence, including pre-recorded evidence, should apply to these offences (see Chapter 21).

Transitional provisions should be introduced

14.130 Recent changes to sexual offences did not include provisions that spell out how the laws are to apply to offences committed before the laws came into effect on 1 July 2017 (‘transitional provisions’).^[180]

14.131 The Office of Public Prosecutions told us this had caused ‘immense difficulties’. There are problems when prosecutors have to identify incidents and dates that spanned months or years around 1 July 2017. This had led to cases being discontinued, or charges not being filed. It called this is a ‘serious defect’ and called for transitional provisions to be introduced ‘as a matter of urgency’.^[181]

14.132 The courts had previously clarified the position when previous amendments did not include transitional provisions,^[182] but this has not happened for the most recent changes. One approach to address this would be to clarify that, if an offence is alleged to have been committed between two dates, charges could be brought under the old laws if the alleged facts would be an offence under both sets of laws. The Office of Public Prosecutions preferred this approach.^[183]

14.133 It is unacceptable that this technical gap in the law has led to such dramatic outcomes. This clearly needs urgent reform, so that people do not fall through the gaps of the laws designed to protect them. The law should be changed as a priority to introduce transitional provisions. The Victorian Government should consult with the Office of Public Prosecutions on the form of the amendment.

The Royal Commission recommendations on child sexual abuse should be implemented

14.134 The recent reforms to sexual offences introduced a ‘course of conduct’ charge.^[184] This is a single charge for a single offence, covering multiple incidents of the same offence committed on more than one occasion over a specified period.^[185] The aim of this new charge was to make it easier to prosecute repeated and systematic sexual abuse, especially child sexual abuse.^[186]

14.135 There is a similar offence of ‘persistent sexual abuse of a child under the age of 16’.^[187] This requires proof that, on at least three occasions when the child was under 16, the accused committed acts of the relevant kind, but the offences do not have to be similar.^[188] The acts also do not need to be proved ‘with the same degree of specificity as to date, time, place, circumstances or occasion’.^[189]

14.136 The Royal Commission into Institutional Responses to Child Sexual Abuse reviewed these two measures (see box). We heard similar concerns on the effectiveness of these measures, including:

• The course of conduct charge is difficult to apply when the offending and relationships vary,^[190] or where the abuse spans many years covering different legal schemes.^[191]

• The charge is not widely used.^[192]

• Requiring proof of a minimum number of sexual acts is a barrier, because people who have experienced ongoing sexual abuse have trouble distinguishing between incidents.^[193]

14.137 Liberty Victoria strongly opposed the use of the course of conduct charge. It explained that, as a jury does not have to be unanimous about which events occurred, it is harder to identify inconsistent or irrational decision making by the jury, and this ‘will inevitably conceal injustice in some cases’ and cause ‘acute difficulties’ in deciding which events should be considered in sentencing.^[194]

14.138 These concerns were considered by the Royal Commission. Its recommendations also address the concerns about the effectiveness of these measures.

Other issues with offences

14.139 In the timeframe provided for this inquiry, we have been unable to fully consider all the issues with sexual offences people told us about. We have focused on those that appeared most significant, but for completeness we list here other issues for the benefit of future law reform.

Grooming

14.140 The current offence of grooming a child applies only to children under 16 years old.^[199] We heard this should be extended to cover other contexts, such as when children are groomed but are sexually assaulted after they have become adults,^[200] or have reached the age of consent (16 years old).^[201]

14.141 The Victorian Institute of Teaching also proposed extending the grooming offence to cases when a child is 16 years or over and the person is in a position of care, supervision or authority. This would recognise the power imbalance between a child and (for example) a teacher, and be consistent with existing sexual offences that protect children aged 16 or 17 years old from conduct committed by someone who provides care, supervision and authority.^[202]

Other issues involving children

14.142 Professor Jeremy Gans identified issues with the definition of ‘sexual penetration’.^[203] This is an element of several sexual offences, including against children. He argued that this definition, by creating a boundary between sexual penetration and sexual touching, could lead to ‘confusing, arbitrary and intrusive’ questioning at trials. He identified several possible ways to reform this, including by replacing the element of sexual penetration.^[204]

14.143 Knowmore legal service supported extending the offence of failure by a person in authority to protect a child from a sexual offence,^[205] so that it protected children who are 16 or 17 years old from sexual abuse by people who hold positions of authority over them.^[206] This extension was recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse, and the Victorian Government has accepted this recommendation in principle.^[207]

Other issues with technology

14.144 Child Protection suggested there was a need to improve legislation and national responses to child sexual exploitation, including online child sexual exploitation. This is a growing trend that became much worse during the coronavirus (COVID-19) pandemic as people spent more time online.^[208]

14.145 Victoria’s two forensic medical services told us that there was a trend towards people meeting online, often through dating apps, and then being sexually assaulted at the first face-to-face meeting.^[209] Two experts on technology-facilitated abuse also suggested creating a new offence focused on technology-facilitated sexual violence, and making ‘grooming’ over social media or dating apps an aggravating factor for sentencing.^[210] We note developments in this area such as online platforms assisting police with investigations.^[211]

Administration of intoxicating substances

14.146 The Law Institute of Victoria suggested that a definition of ‘administers’ should be inserted to clarify the scope of the offence of administration of an intoxicating substance for a sexual purpose. For example, as the offence did not include any consideration of consent, it was unclear if the offence included situations such as a person buying another person a drink at the bar with the hope that this may encourage someone to take part in a sexual act, which was presumably not the intention of the Act.^[212]

Online harassment

14.147 Experts in technology-facilitated abuse told us of issues with persistent online harassment that amounts to stalking.^[213] This is likely to be considered as part of the Commission’s current inquiry into stalking, harassment and similar conduct.^[214]

Forced marriage and human trafficking

14.148 We heard of challenges in adequately protecting young people subject to forced marriage (a Commonwealth offence) when child protection authorities do not intervene. Individuals over the age of 16 years are often considered independent and are therefore rarely prioritised by child protection authorities, depending on the state or territory. child protection systems are generally more responsive to children younger in age, whereas the risk of forced marriage in minors generally increases with age, with those aged 16 and 17 years old at high risk as they approach adulthood.

14.149 We also heard that, despite recent efforts by the Australian Federal Police to raise awareness with state and territory police agencies, indicators of human trafficking and forced marriage can be missed by state police because, as they are considered Commonwealth crimes, they are less familiar with these offences, and there is an absence of standardised mandatory training for state police on these issues.^[215]

Sexual exposure in sex industry venues

14.150 Sex Work Law Reform Victoria explained that people who work in strip clubs can experience sexual exposure from clients.^[1] It queried whether this amounted to an offence,^[2] and told us that it should be acknowledged that sexual exposure can occur in public and private places, and that it is unacceptable in sex industry venues.^[3]

1. In Victoria some legislation also uses the terminology of ‘victims’, including the Victims’ Charter Act 2006 (Vic) and Victims of Crime Assistance Act 1996 (Vic).

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2. These are like trials but there is no jury: Victorian Government, ‘Court Process in the Magistrates’ Court’, Victims of Crime (Web Page, 20 April 2021) <https://www.victimsofcrime.vic.gov.au/going-to-court/types-of-courts/court-process-in-the-magistrates-court>.

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3. Crimes Act 1958 (Vic) s 38(2).

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4. Ibid s 37A(a).

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5. Department of Justice (Vic), Review of Sexual Offences (Consultation Paper, September 2013) vii <http://www.justice.vic.gov.au/review-of-sexual-offences-consultation-paper>; Department of Justice and Regulation (Vic), Victoria’s New Sexual Offence Laws: An Introduction (Report, Criminal Law Review, June 2015) <https://www.justice.vic.gov.au/victorias-new-sexual-offence-laws-an-introduction>.

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6. Victorian Law Reform Commission, Defining Sexual Offences (Issues Paper C, October 2020) Questions 1, 3–4.

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7. Crimes Act 1958 (Vic) pt 1 div 1 sub-div 8A.

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8. Ibid pt 1 div 1 sub-div 8B.

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9. Ibid s 327.

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10. See, eg, ibid s 49A(2).

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11. Ibid s 49B.

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12. Ibid ss 49–UV.

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13. Ibid ss 49C, 49E.

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14. Ibid pt 1 div 1 sub-div 8D.

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15. Criminal Code Act 1995 (Cth) sch 1 pt 10.6 sub-div D (‘Criminal Code (Cth)’).

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16. The term ‘child pornography’ is not used here as the word ‘pornography’ can suggest that the material is a ‘legitimate subgenre of adult pornography’: Jeremy Prichard and Caroline Spiranovic, Child Exploitation Material in the Context of Institutional Child Sexual Abuse (Report for the Royal Commission into Institutional Responses to Child Sexual Abuse, September 2014) 8 <https://www.childabuseroyalcommission.gov.au/sites/default/files/file-list/Research%20Report%20-%20Child%20Exploitation%20Material%20in%20the%20Context%20of%20Institutional%20Child%20Sexual%20Abuse%20-%20Causes.pdf>.

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17. Crimes Act 1958 (Vic) s 51A (definition of ‘child abuse material’).

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18. Ibid pt 1div 1 sub-div 8E.

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19. See, eg, ibid pt 1 div 1 sub-divs 8C, 8F; Summary Offences Act 1966 (Vic) ss 19, 41A–DB.

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20. Summary Offences Act 1966 (Vic) ss 19, 41A–DB.

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21. See, eg, Family Violence Protection Act 2008 (Vic) s 5(1)(i); Crimes Act 1958 (Vic) s 37A(b). For example, online child sexual exploitation, which involves the ‘use of technology or the internet to facilitate the sexual abuse of a child’, including producing and sharing child sexual abuse material online: Australian Centre to Counter Child Exploitation, Online Child Sexual Exploitation: Understanding Community Awareness, Perceptions, Attitudes and Preventative Behaviours (Research Report, February 2020) 1.

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22. See Criminal Code (Cth) ss 270.7A–B; Crimes Act 1958 (Vic) ss 21A, 32.

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23. Magistrates’ Court Act 1989 (Vic) s 25; County Court Act 1958 (Vic) s 36A.

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24. The indictable offences that can be heard summarily, if the accused consents, are defined by the maximum sentence or set out in the legislation: see Criminal Procedure Act 2009 (Vic) ss 28–29, sch 2.

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25. Consent is not a factor for offences against children under the age of consent: see, eg, Crimes Act 1958 (Vic) s 49B.

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26. See, eg, ibid s 38(1)(b)-(c) (rape), 40(1)(c)-d (sexual assault).

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27. Department of Justice and Regulation (Vic), Victoria’s New Sexual Offence Laws: An Introduction (Report, Criminal Law Review, June 2015) 12–13 <https://www.justice.vic.gov.au/victorias-new-sexual-offence-laws-an-introduction>. This had its origins in Victorian Law Reform Commission, Sexual Offences (Report No 5, July 2004) ch 8.

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28. Crimes Act 1958 (Vic) s 36(1).

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29. Ibid s 36(2).

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30. See, eg, ibid s 38(1)(c) (rape).

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31. Serious crimes are made up of ‘physical elements’ and ‘fault elements’. Physical elements of an offence relate to the conduct and any circumstances that must be proved. Fault elements set out the person’s mental state that must be proved.

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32. Department of Justice and Regulation (Vic), Victoria’s New Sexual Offence Laws: An Introduction (Report, Criminal Law Review, June 2015) 12–13 <https://www.justice.vic.gov.au/victorias-new-sexual-offence-laws-an-introduction>.

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33. Eithne Dowds, ‘Rethinking Affirmative Consent’ in Rachel Killean, Eithne Dowds and Anne-Marie McAlinden (eds), Sexual Violence on Trial: Local and Comparative Perspectives (Routledge, 2021) 163.

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34. Victorian Law Reform Commission, Sexual Offences (Report No 5, July 2004) ch 8.

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35. The law in Victoria is sometimes described as encompassing an affirmative consent standard: Rachael Burgin, ‘Persistent Narratives of Force and Resistance: Affirmative Consent as Law Reform’ (2019) 59(2) The British Journal of Criminology 296, 296.

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36. Queensland Law Reform Commission, Review of Consent Laws and the Excuse of Mistake of Fact (Report No 78, June 2020) [4.52].

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37. Eithne Dowds, ‘Rethinking Affirmative Consent’ in Rachel Killean, Eithne Dowds and Anne-Marie McAlinden (eds), Sexual Violence on Trial: Local and Comparative Perspectives (Routledge, 2021) 165–6; Kellie Scott, ‘Active Consent Doesn’t Sound Sexy, but It Can Lead to More Pleasure’, ABC Everyday (Web Page, 22 January 2020) <https://www.abc.net.au/everyday/active-consent-can-lead-to-more-pleasure/11473678>.

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38. Rachael Burgin, ‘Persistent Narratives of Force and Resistance: Affirmative Consent as Law Reform’ (2019) 59(2) The British Journal of Criminology 296, 302 (citations omitted).

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39. Rachael Burgin and Asher Flynn, ‘Women’s Behavior as Implied Consent: Male “Reasonableness” in Australian Rape Law’ (2021) 21(3) Criminology & Criminal Justice 334, 335.

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40. Jury Directions Act 2015 (Vic) s 46(3)(d)(ii).

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41. Department of Justice and Regulation (Vic), Victoria’s New Sexual Offence Laws: An Introduction (Report, Criminal Law Review, June 2015) 13–14 <https://www.justice.vic.gov.au/victorias-new-sexual-offence-laws-an-introduction>.

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42. Ibid 14.

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43. These were: (1) the accused is aware that the complainant is not consenting (‘knowledge’) (2) the accused is aware that the complainant might not be consenting (‘a form of recklessness’) (3) the accused does not give any thought to whether the complainant is not consenting or might not be consenting (‘non-advertence’): Department of Justice (Vic), Review of Sexual Offences (Consultation Paper, September 2013) 20 <http://www.justice.vic.gov.au/review-of-sexual-offences-consultation-paper>.

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44. Ibid 16.

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45. Department of Justice and Regulation (Vic), Victoria’s New Sexual Offence Laws: An Introduction (Report, Criminal Law Review, June 2015) 13 <https://www.justice.vic.gov.au/victorias-new-sexual-offence-laws-an-introduction>.

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46. Ibid 14–15.

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47. Ibid 16–17.

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48. Ibid 17.

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49. Ibid.

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50. Crimes Act 1900 (NSW) s 61HE(2).

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51. New South Wales Law Reform Commission, Consent in Relation to Sexual Offences (Report No 148, September 2020) Recommendations 5.1–5.2.

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52. Criminal Code Act 1899 (Qld) sch 1 (‘Criminal Code (Qld)’) s 348(1).

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53. Queensland Law Reform Commission, Review of Consent Laws and the Excuse of Mistake of Fact (Report No 78, June 2020) [5.38]–[5.77].

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54. Law Reform Commission of Ireland, Knowledge or Belief Concerning Consent in Rape Law (Report No 122, 8 November 2019) [3.93]–[3.102] <https://www.lawreform.ie/_fileupload/Reports/LRC%20122-2019%20Knowledge%20or%20Belief%20Concerning%20Consent%20in%20Rape%20Law.pdf>; see, eg, Sexual Offences Act 2003 (UK) s 1(2).

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55. Criminal Code, RSC 1985, c C-46, s 273.2(b).

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56. Criminal Code Act 1924 (Tas) sch 1 (‘Criminal Code (Tas)’) s 14A.

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57. Department of Justice and Regulation (Vic), Victoria’s New Sexual Offence Laws: An Introduction (Report, Criminal Law Review, June 2015) 13 <https://www.justice.vic.gov.au/victorias-new-sexual-offence-laws-an-introduction>.

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58. Victorian Law Reform Commission, Defining Sexual Offences (Issues Paper C, October 2020) Question 2.

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59. Submission 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes).

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60. Submission 17 (Sexual Assault Services Victoria).

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61. Submission 38 (Bravehearts).

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62. Submission 25 (Dr Steven Tudor).

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63. Submission 34 (Rape & Sexual Assault Research & Advocacy).

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64. Submission 50 (Project Respect).

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65. Consultation 34 (Project Respect Women’s Advisory Group).

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66. Consultation 45 (Sex Work Law Reform Victoria).

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67. Prostitution Reform Act 2003 (NZ) s 17(2).

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68. Submission 68 (Victoria Police).

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69. Submissions 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes), 34 (Rape & Sexual Assault Research & Advocacy); Consultation 5 (Associate Professors Anastasia Powell and Asher Flynn).

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70. Submission 68 (Victoria Police).

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71. Submission 63 (Office of Public Prosecutions).

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72. [2020] VSCA 303.

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73. See, eg, Cal Education Code 2020 §67386(a).

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74. Eithne Dowds, ‘Rethinking Affirmative Consent’ in Rachel Killean, Eithne Dowds and Anne-Marie McAlinden (eds), Sexual Violence on Trial: Local and Comparative Perspectives (Routledge, 2021) 169.

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75. Submissions 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes), 17 (Sexual Assault Services Victoria), 34 (Rape & Sexual Assault Research & Advocacy), 39 (Rape & Domestic Violence Services Australia).

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76. Submissions 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes), 39 (Rape & Domestic Violence Services Australia).

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77. Submission 39 (Rape & Domestic Violence Services Australia). See also the discussion in John Gillen, Gillen Review: Report into the Law and Procedures in Serious Sexual Offences in Northern Ireland (Report, 9 May 2019) [11.48]–[11.51] <https://www.justice-ni.gov.uk/sites/default/files/publications/justice/gillen-report-may-2019.pdf>.

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78. Submissions 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes), 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton); Consultation 5 (Associate Professors Anastasia Powell and Asher Flynn).

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79. Wendy Larcombe et al, ‘Reforming the Legal Definition of Rape in Victoria—What Do Stakeholders Think?’ (2015) 15(2) QUT Law Review 30, 45.

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80. Submission 34 (Rape & Sexual Assault Research & Advocacy).

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81. Submission 25 (Dr Steven Tudor); Consultations 4 (Judicial College of Victoria), 26 (Greg Byrne PSM, Legal Policy Consultant, Greg Byrne Law). The Criminal Bar Association did not see any need to change the law on consent, although it did not refer specifically to ‘taking steps’: Submission 47 (Criminal Bar Association).

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82. Consultation 4 (Judicial College of Victoria); Jury Directions Act 2015 (Vic) s 47(3)(d).

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83. Submission 25 (Dr Steven Tudor).

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84. Consultation 26 (Greg Byrne PSM, Legal Policy Consultant, Greg Byrne Law).

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85. Andrew Dyer, ‘Yes! To Communication about Consent; No! To Affirmative Consent: A Reply to Anna Kerr’ (2019) 7(1) Griffith Journal of Law and Human Dignity 17, 26–7.

    ↑

86. Ibid 28–9 (citations omitted). See also John Gillen, Gillen Review: Report into the Law and Procedures in Serious Sexual Offences in Northern Ireland (Report, 9 May 2019) [11.60]–[11.61] <https://www.justice-ni.gov.uk/sites/default/files/publications/justice/gillen-report-may-2019.pdf>.

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87. John Gillen, Gillen Review: Report into the Law and Procedures in Serious Sexual Offences in Northern Ireland (Report, 9 May 2019) [11.52], [11.56] <https://www.justice-ni.gov.uk/sites/default/files/publications/justice/gillen-report-may-2019.pdf>.

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88. Submission 25 (Dr Steven Tudor); Wendy Larcombe, ‘Limits of the Criminal Law for Preventing Sexual Violence’ in N Henry and A Powell (eds), Preventing Sexual Violence (Palgrave Macmillan, 2014) 64.

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89. For example, see the discussion in Eithne Dowds, ‘Rethinking Affirmative Consent’ in Rachel Killean, Eithne Dowds and Anne-Marie McAlinden (eds), Sexual Violence on Trial: Local and Comparative Perspectives (Routledge, 2021) 167–9.

    ↑

90. Criminal Code (Tas) s 14A.

    ↑

91. Helen Cockburn, ‘The Impact of Introducing an Affirmative Model of Consent and Changes to the Defence of Mistake in Tasmania Rape Trials’ (PhD Thesis, University of Tasmania, 2012) 188–90, 200 <http://eprints.utas.edu.au/14748>; Wendy Larcombe et al, ‘Reforming the Legal Definition of Rape in Victoria—What Do Stakeholders Think?’ (2015) 15(2) QUT Law Review 30, 48.

    ↑

92. John Gillen, Gillen Review: Report into the Law and Procedures in Serious Sexual Offences in Northern Ireland (Report, 9 May 2019) [11.59] <https://www.justice-ni.gov.uk/sites/default/files/publications/justice/gillen-report-may-2019.pdf>.

    ↑

93. Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7, 24.

    ↑

94. Helen Cockburn, ‘The Impact of Introducing an Affirmative Model of Consent and Changes to the Defence of Mistake in Tasmania Rape Trials’ (PhD Thesis, University of Tasmania, 2012) 206–7 <http://eprints.utas.edu.au/14748>.

    ↑

95. Submission 25 (Dr Steven Tudor).

    ↑

96. Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming).

    ↑

97. Ibid.

    ↑

98. Law Reform Commission of Ireland, Knowledge or Belief Concerning Consent in Rape Law (Report No 122, 8 November 2019) Recommendation 3.07 <https://www.lawreform.ie/_fileupload/Reports/LRC%20122-2019%20Knowledge%20or%20Belief%20Concerning%20Consent%20in%20Rape%20Law.pdf>.

    ↑

99. John Gillen, Gillen Review: Report into the Law and Procedures in Serious Sexual Offences in Northern Ireland (Report, 9 May 2019) [11.45]–[11.77] <https://www.justice-ni.gov.uk/sites/default/files/publications/justice/gillen-report-may-2019.pdf>.

    ↑

100. New South Wales Law Reform Commission, Consent in Relation to Sexual Offences (Report No 148, September 2020) [7.119] –[7.121], [7.160], [7.165]–[7.168].

     ↑

101. Mark Speakman (Attorney-General for NSW), Sarah Mitchell (Minister for Education and Early Childhood Learning) and Bronnie Taylor (Minister for Mental Health, Regional Youth and Women), ‘Consent Law Reform’ (Media Release, 25 May 2021) <https://www.dcj.nsw.gov.au/__data/assets/pdf_file/0007/811564/consent-law-reform.pdf>.

     ↑

102. See, eg, Rachael Burgin, ‘NSW Adopts Affirmative Consent in Sexual Assault Laws. What Does This Mean?’, The Conversation (Web Page, 25 May 2021) <http://theconversation.com/nsw-adopts-affirmative-consent-in-sexual-assault-laws-what-does-this-mean-161497>; Medhora, Shalailah and Maddy King, ‘“We’re Leading the Way”: Affirmative Consent to Become Law in NSW as Part of Historic Reforms’, ABC Triple J Hack (online, 25 May 2021) <https://www.abc.net.au/triplej/programs/hack/affirmative-consent-to-become-law-in-nsw/13358840>; Jennifer Scherer, ‘Prominent Lawyers Sign Open Letter Supporting Sexual Consent Law Reforms in NSW’, SBS News (online, 1 June 2021) <https://www.sbs.com.au/news/prominent-lawyers-sign-open-letter-supporting-sexual-consent-law-reforms-in-nsw>.

     ↑

103. New South Wales Bar Association, ‘Consent Proposals Could Result in Significant Injustice’ (Media Release, 25 May 2021) <https://inbrief.nswbar.asn.au/posts/08b347d11316f1372f3414b4c466afe4/attachment/25.5.21%20MR%20CONSENT.pdf>.

     ↑

104. Eithne Dowds, ‘Rethinking Affirmative Consent’ in Rachel Killean, Eithne Dowds and Anne-Marie McAlinden (eds), Sexual Violence on Trial: Local and Comparative Perspectives (Routledge, 2021) 169.

     ↑

105. Exposure Draft, Crimes (Consent) Amendment Bill 2021 (ACT) cl 7, inserting s 67(5).

     ↑

106. Attorney-General for Australia and Minister for Industrial Relations (Cth), ‘Leading a National Approach to Justice for Victims and Survivors of Sexual Assault, Harassment and Coercive Control’ (Media Release, 17 May 2021) <https://www.attorneygeneral.gov.au/media/media-releases/leading-national-approach-justice-17-may-2021>.

     ↑

107. Submission 29 (Victorian Pride Lobby).

     ↑

108. But note in these situations there is the defence of mental impairment. The law recognises that a person with a mental health condition or cognitive impairment will not have the capacity to be criminally responsible for their actions. For example, when they did not know what they were doing, or did not know their actions were wrong: see Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic).

     ↑

109. Brianna Chesser and April Zahra, ‘Stealthing: A Criminal Offence?’ (2019) 31(2) Current Issues in Criminal Justice 217, 219.

     ↑

110. Alexandra Brodsky, ‘“Rape-Adjacent”: Imagining Legal Responses to Nonconsensual Condom Removal’ (2017) 32(2) Columbia Journal of Gender and Law 183, 185. See also Brianna Chesser and April Zahra, ‘Stealthing: A Criminal Offence?’ (2019) 31(2) Current Issues in Criminal Justice 217.

     ↑

111. In Victoria a person has been charged with rape and sexual assault for non-consensual condom removal. The case has not yet been tried in court: Medical Board of Australia v Liang Joo Leow [2019] VSC 532 [4]. In another case, a person pleaded guilty to procuring sexual activity by fraud: DPP (Vic) v Diren [2020] VCC 61.

     ↑

112. Alexandra Brodsky, ‘“Rape-Adjacent”: Imagining Legal Responses to Nonconsensual Condom Removal’ (2017) 32(2) Columbia Journal of Gender and Law 183, 184.

     ↑

113. Brianna Chesser and April Zahra, ‘Stealthing: A Criminal Offence?’ (2019) 31(2) Current Issues in Criminal Justice 217, 218; Rosie Latimer et al, ‘Non-Consensual Condom Removal, Reported by Patients at a Sexual Health Clinic in Melbourne, Australia’ (2018) 13(12) PLOS ONE e0209779: 1–16, 16.

     ↑

114. Rosie Latimer et al, ‘Non-Consensual Condom Removal, Reported by Patients at a Sexual Health Clinic in Melbourne, Australia’ (2018) 13(12) PLOS ONE e0209779: 1–16, 13 <https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0209779>. Latimer and colleagues state that victim survivors may also be less inclined to identify their experience as a form of sexual violence due to ‘real rape’ myths and as a way to avoid the distress that may be experienced by labelling oneself a victim of crime: 13.

     ↑

115. Ibid 11–13.

     ↑

116. Submission 50 (Project Respect). It told us that 14% of women Project Respect met during outreach in brothels in 2018–19 experienced the removal of a condom during a booking.

     ↑

117. Brianna Chesser and April Zahra, ‘Stealthing: A Criminal Offence?’ (2019) 31(2) Current Issues in Criminal Justice 217, 218; Rosie Latimer et al, ‘Non-Consensual Condom Removal, Reported by Patients at a Sexual Health Clinic in Melbourne, Australia’ (2018) 13(12) PLOS ONE e0209779: 1–16, 7 <https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0209779>.

     ↑

118. Submissions 25 (Dr Steven Tudor), 28 (Dr Natalia Antolak-Saper), 34 (Rape & Sexual Assault Research & Advocacy), 50 (Project Respect), 59 (County Court of Victoria); Consultations 4 (Judicial College of Victoria), 26 (Greg Byrne PSM, Legal Policy Consultant, Greg Byrne Law), 46 (Safer Families Research Centre and Monash Social Inclusion Centre).

     ↑

119. Submissions 34 (Rape & Sexual Assault Research & Advocacy), 50 (Project Respect), 59 (County Court of Victoria).

     ↑

120. Submission 50 (Project Respect).

     ↑

121. Crimes Act 1958 (Vic) s 36(2).

     ↑

122. Crimes Act 1958 (Vic) s 45.

     ↑

123. See generally Melissa Marie Blanco, ‘Sex Trend or Sexual Assault: The Dangers of Stealthing and the Concept of Conditional Consent Comments’ (2018) 123(1) Penn State Law Review 217; Alexandra Brodsky, ‘“Rape-Adjacent”: Imagining Legal Responses to Nonconsensual Condom Removal’ (2017) 32(2) Columbia Journal of Gender and Law 183; Brianna Chesser and April Zahra, ‘Stealthing: A Criminal Offence?’ (2019) 31(2) Current Issues in Criminal Justice 217; Andrew Dyer, ‘Mistakes That Negate Apparent Consent’ (2018) 43(3) Criminal Law Journal 159, 169–73.

     ↑

124. Submissions 25 (Dr Steven Tudor), 28 (Dr Natalia Antolak-Saper), 34 (Rape & Sexual Assault Research & Advocacy); Consultations 4 (Judicial College of Victoria), 26 (Greg Byrne PSM, Legal Policy Consultant, Greg Byrne Law).

     ↑

125. Submission 59 (County Court of Victoria). This was also supported as an alternative by Submission 28 (Dr Natalia Antolak-Saper).

     ↑

126. Submission 28 (Dr Natalia Antolak-Saper).

     ↑

127. New South Wales Law Reform Commission, Consent in Relation to Sexual Offences (Report No 148, September 2020) Recommendation 5.5.

     ↑

128. Queensland Law Reform Commission, Review of Consent Laws and the Excuse of Mistake of Fact (Report No 78, June 2020) [6.143].

     ↑

129. Crimes (Stealthing) Amendment Bill 2021 (ACT) cl 4, inserting s 67(1)(ga).

     ↑

130. Submission 28 (Dr Natalia Antolak-Saper).

     ↑

131. For example, rape is a Category 1 offence, which means that a court must impose a custodial sentence for that offence and, if committed on or after 1 February 2018, will receive a standard sentence of 10 years: Sentencing Act 1991 (Vic) pt 3, div 2.

     ↑

132. This should be introduced as a new circumstance in Crimes Act 1958 (Vic) s 36(2).

     ↑

133. These are protective sheets used during oral sex: Queensland Government, ‘Oral Sex and STIs – What You Need to Know’, Queensland Health (Web Page, 24 June 2019) <https://www.health.qld.gov.au/news-events/news/oral-sex-STI-protection-condom-dental-dam>.

     ↑

134. Submission 25 (Dr Steven Tudor).

     ↑

135. Victorian Law Reform Commission, Defining Sexual Offences (Issues Paper C, October 2020) Question 3.

     ↑

136. Asher Flynn, Anastasia Powell and Sophie Hindes, Technology-Facilitated Abuse: A Survey of Support Services Stakeholders (Research Report Issue 2, ANROWS Australia’s National Research Organisation for Women’s Safety, July 2021) 9–14 <https://www.anrows.org.au/project/technology-facilitated-abuse-extent-nature-and-responses-in-the-australian-community/>; Antonia Quadara et al, Conceptualising the Prevention of Child Sexual Abuse (Research Report No 33, Australian Institute of Family Studies (Cth), June 2015) 15 <https://aifs.gov.au/publications/conceptualising-prevention-child-sexual-abuse>.

     ↑

137. Nicole Bluett-Boyd et al, The Role of Emerging Communication Technologies in Experiences of Sexual Violence : A New Legal Frontier? (Research Report No 23, Australian Institute of Family Studies (Cth), February 2013) chs 4–5 <https://aifs.gov.au/publications/role-emerging-communication-technologies-experienc>.

     ↑

138. Asher Flynn, Anastasia Powell and Sophie Hindes, Technology-Facilitated Abuse: A Survey of Support Services Stakeholders (Research Report Issue 2, ANROWS Australia’s National Research Organisation for Women’s Safety, July 2021) 38 <https://www.anrows.org.au/project/technology-facilitated-abuse-extent-nature-and-responses-in-the-australian-community/>.

     ↑

139. Submission 50 (Project Respect).

     ↑

140. The term ‘revenge pornography’ has been critiqued for several reasons, including because it focuses on the content of the image rather than the abusive action: Nicola Henry, Asher Flynn and Anastasia Powell, Responding to ‘Revenge Pornography’: Prevalence, Nature and Impacts (Report CRG 08/15-16, Criminology Research Advisory Council, March 2019) 12–13 <https://researchmgt.monash.edu/ws/portalfiles/portal/264678641/08_1516_FinalReport.pdf>.

     ↑

141. This is where an image up a person’s skirt is taken, distributed or threatened to be distributed, without their permission. Another similar behaviour is known as ‘downblousing’ where these non-consensual images relate to the person’s cleavage: ibid 36.

     ↑

142. This is where technology is used to digitally alter images showing a person’s face superimposed or ‘stitched’ on a pornographic image. This is also known as ‘morph porn’: ibid 14.

     ↑

143. Sextortion refers to a form of blackmail that involves threats to share intimate images online: ‘Sextortion Trends and Challenges—Position Statement’, eSafety Commissioner (Web Page) <https://www.esafety.gov.au/about-us/tech-trends-and-challenges/sextortion>. See generally Hadeel Al-Alosi, ‘Cyber-Violence: Digital Abuse in the Context of Domestic Violence’ (2017) 40(4) UNSW Law Journal 1573, 1573–80; Office of the eSafety Commissioner (Cth), Image-Based Abuse National Survey (Summary Report, 2017) 5–6 <https://www.esafety.gov.au/sites/default/files/2019-07/Image-based-abuse-national-survey-summary-report-2017.pdf>.

     ↑

144. Sentencing Advisory Council (Vic), Sentencing Image-Based Sexual Abuse Offences in Victoria (Report, October 2020) xi.

     ↑

145. Factors relevant to those standards, such as the age or intellectual capacity of the person depicted, are listed in Summary Offences Act 1966 (Vic) s 40 (definition of ‘community standards of acceptable conduct’).

     ↑

146. Criminal Code (Cth) s 474.17A(1), which is an aggravated version of s 474.17(1). See also s 473.1 (definition of ‘private sexual material’).

     ↑

147. Enhancing Online Safety Act 2015 (Cth) pt 5A.

     ↑

148. Criminal Code (Cth) s 474.17A(4).

     ↑

149. Most crimes require a person to have a specified state of mind to be found guilty, called the ‘fault element’ or sometimes the ‘mental element’ or mens rea. Intention and recklessness are common forms of ‘fault element’.

     ↑

150. Crimes Act 1900 (NSW) pt 3 div 15C.

     ↑

151. Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Phenomenon Colloquially Referred to as ‘Revenge Porn’ (Report, 25 February 2016) [5.14], Recommendation 2 <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Revenge_porn/Report>.

     ↑

152. Law, Crime and Community Safety Council, National Statement of Principles Relating to the Criminalisation of the Non-Consensual Sharing of Intimate Images (Council Document, May 2017) 3, [14] <https://www.homeaffairs.gov.au/criminal-justice/files/criminalisation-non-consensual-sharing-intimate-images.pdf>.

     ↑

153. Submission 39 (Rape & Domestic Violence Services Australia); Consultations 5 (Associate Professors Anastasia Powell and Asher Flynn), 7 (Associate Professor Nicola Henry). See also Sentencing Advisory Council (Vic), Sentencing Image-Based Sexual Abuse Offences in Victoria (Report, October 2020) [6.1].

     ↑

154. Sentencing Advisory Council (Vic), Sentencing Image-Based Sexual Abuse Offences in Victoria (Report, October 2020) x.

     ↑

155. Submission 39 (Rape & Domestic Violence Services Australia).

     ↑

156. Submission 50 (Project Respect).

     ↑

157. Submissions 10 (Carolyn Worth AM and Mary Lancaster), 59 (County Court of Victoria); Consultation 7 (Associate Professor Nicola Henry).

     ↑

158. Consultation 7 (Associate Professor Nicola Henry).

     ↑

159. Crimes Act 1900 (NSW) s 91N (definitions of ‘intimate image’, ‘private parts’).

     ↑

160. Submissions 39 (Rape & Domestic Violence Services Australia), 68 (Victoria Police).

     ↑

161. Criminal Procedure Act 2009 (Vic) s 7. The accused can consent to commencing proceedings beyond this time limit, or the law can otherwise specify that the time limit does not apply.

     ↑

162. Submission 68 (Victoria Police).

     ↑

163. Sentencing Advisory Council (Vic), Sentencing Image-Based Sexual Abuse Offences in Victoria (Report, October 2020) [3.14] (citations omitted).

     ↑

164. Submission 27 (Victoria Legal Aid).

     ↑

165. Or before a jury in the County Court, depending on the circumstances.

     ↑

166. Summary Offences Act 1966 (Vic) ss 40 (definition of ‘device’), 41A.

     ↑

167. Crimes Act 1900 (NSW) s 91N–S.

     ↑

168. Ibid s 91P–R.

     ↑

169. Sentencing Advisory Council (Vic), Sentencing Image-Based Sexual Abuse Offences in Victoria (Report, October 2020) [6.6].

     ↑

170. Ibid [6.2].

     ↑

171. Submissions 14 (Gatehouse Centre, Royal Children’s Hospital), 17 (Sexual Assault Services Victoria).

     ↑

172. Submission 14 (Gatehouse Centre, Royal Children’s Hospital).

     ↑

173. Kimberley Shirley, The Cautious Approach: Police Cautions and the Impact on Youth Reoffending (In Brief No 9, Crime Statistics Agency (Vic), September 2017) 3.

     ↑

174. Children, Youth and Families Act 2005 (Vic) ss 360, 362.

     ↑

175. Crimes Act 1900 (NSW) s 91P(2), Q(2), R(6).

     ↑

176. Consultation 70 (Victoria Police (No 1)).

     ↑

177. Submission 68 (Victoria Police).

     ↑

178. Open Courts Act 2013 (Vic) ss 3 (definition of ‘sexual offences’), 18(1)(d). See also Victorian Law Reform Commission, Committals (Report No 41, March 2020) Recommendations 99–102.

     ↑

179. Consultation 7 (Associate Professor Nicola Henry).

     ↑

180. Crimes Amendment (Sexual Offences) Act 2016 (Vic): repealing and replacing the sexual offences in the Crimes Act 1958 (Vic).

     ↑

181. Submission 63 (Office of Public Prosecutions).

     ↑

182. See Dibbs v The Queen [2012] VSCA 224; (2012) 225 A Crim R 195.

     ↑

183. Consultation 94 (Office of Public Prosecutions (No 2)).

     ↑

184. Criminal Procedure Act 2009 (Vic) sch 1 cl 4A.

     ↑

185. Judicial College Victoria, ‘7.1.5 Course of Conduct Charges’, Criminal Charge Book (Online Manual, 2 October 2018) [2] <https://www.judicialcollege.vic.edu.au/eManuals/CCB/54857.htm>.

     ↑

186. Department of Justice and Regulation (Vic), Victoria’s New Sexual Offence Laws: An Introduction (Report, Criminal Law Review, June 2015) 22–3 <https://www.justice.vic.gov.au/victorias-new-sexual-offence-laws-an-introduction>.

     ↑

187. Crimes Act 1958 (Vic) s 49J.

     ↑

188. Judicial College Victoria, ‘7.3.22 Persistent Sexual Abuse of a Child’ (from 1 July 2017), Criminal Charge Book (Online Manual, 30 November 2017) [21]–[22] <https://www.judicialcollege.vic.edu.au/eManuals/CCB/64929.htm>.

     ↑

189. Crimes Act 1958 (Vic) s 49J(4).

     ↑

190. Submission 22 (knowmore legal service); Consultation 26 (Greg Byrne PSM, Legal Policy Consultant, Greg Byrne Law).

     ↑

191. Submission 59 (County Court of Victoria).

     ↑

192. Consultation 4 (Judicial College of Victoria).

     ↑

193. Submission 18 (In Good Faith Foundation).

     ↑

194. Submission 53 (Liberty Victoria).

     ↑

195. Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice (Report, August 2017) Recommendation 21 <https://www.childabuseroyalcommission.gov.au/criminal-justice>.

     ↑

196. Victorian Government, ‘Victorian Government Response to the Royal Commission into Institutional Child Sexual Abuse’, VIC.GOV.AU (Web Page, 20 July 2021) <https://www.vic.gov.au/victorian-government-response-royal-commission-institutional-responses-child-sexual-abuse>.

     ↑

197. Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice (Report, August 2017) Recommendation 24 <https://www.childabuseroyalcommission.gov.au/criminal-justice>. Recommendation 23 also related to course of conduct charges, but this recommendation did not apply to Victoria as it already had legislation to authorise course of conduct charges.

     ↑

198. Victorian Government, ‘Victorian Government Response to the Royal Commission into Institutional Child Sexual Abuse’, VIC.GOV.AU (Web Page, 20 July 2021) <https://www.vic.gov.au/victorian-government-response-royal-commission-institutional-responses-child-sexual-abuse>.

     ↑

199. Crimes Act 1958 (Vic) s 49M.

     ↑

200. Submissions 18 (In Good Faith Foundation), 70 (Victorian Institute of Teaching).

     ↑

201. Consultation 57 (Department of Health and Human Services).

     ↑

202. Submission 70 (Victorian Institute of Teaching); Consultation 57 (Department of Health and Human Services).

     ↑

203. Crimes Act 1958 (Vic) s 35A.

     ↑

204. Submission 31 (Professor Jeremy Gans).

     ↑

205. Crimes Act 1958 (Vic) s 49O.

     ↑

206. Submission 22 (knowmore legal service).

     ↑

207. Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice (Report, August 2017) Recommendation 36 <https://www.childabuseroyalcommission.gov.au/criminal-justice>; Victorian Government, ‘Victorian Government Response to the Royal Commission into Institutional Child Sexual Abuse’, VIC.GOV.AU (Web Page, 20 July 2021) <https://www.vic.gov.au/victorian-government-response-royal-commission-institutional-responses-child-sexual-abuse>.

     ↑

208. Consultation 57 (Department of Health and Human Services).

     ↑

209. Submissions 61 (Victorian Institute of Forensic Medicine), 71 (Victorian Institute of Forensic Medicine and Victorian Forensic Paediatric Medical Service). See also Janine Rowse, Caroline Bolt and Sanjeev Gaya, ‘Swipe Right: The Emergence of Dating-App Facilitated Sexual Assault. A Descriptive Retrospective Audit of Forensic Examination Caseload in an Australian Metropolitan Service’ (2020) 16(1) Forensic Science, Medicine, and Pathology 71. Their suggestion of an interest group is discussed in ch 4.

     ↑

210. Consultation 5 (Associate Professors Anastasia Powell and Asher Flynn).

     ↑

211. ‘Match Group & Tinder Respond to Australian Broadcasting Corporation Report on Safety in Dating Industry’, Tinder (Web Page, 12 October 2020) <https://blog.gotinder.com/match-group-tinder-respond-to-australian-broadcasting-corporation-report-on-safety-in-dating-industry/>.

     ↑

212. Submission 40 (Law Institute of Victoria); the offence is in the Crimes Act 1958 (Vic) s 46.

     ↑

213. Consultation 5 (Associate Professors Anastasia Powell and Asher Flynn). For the offence of stalking, see Crimes Act 1958 (Vic) s 21A.

     ↑

214. Victorian Law Reform Commission, Stalking (Consultation Paper, June 2021) [8.1]–[8.29]. Cyberstalking is stalking that can be perpetrated using technology. Cyberstalking is regulated through criminal laws and civil laws, which are a combination of state and Commonwealth laws.

     ↑

215. Consultation 44 (Red Cross Support for Trafficked Persons Program).

     ↑

216. Consultation 45 (Sex Work Law Reform Victoria).

     ↑

217. The offence of sexual exposure in a ‘public place’ includes premises that are licensed or authorised under the Liquor Control Reform Act 1998 (Vic): Summary Offences Act 1966 (Vic) ss 3 (definition of ‘public place’), 19.

     ↑

218. Consultation 45 (Sex Work Law Reform Victoria).

     ↑