Deepfake Pornography, Stealthing and Affirmative Consent (Vic)

In 2022, Victoria introduced reforms that made significant changes to the state’s sexual consent laws. The Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 made a range of changes including updating Victoria’s definition of consent, criminalising ‘stealthing’ and introducing new offences involving intimate images that can be used to prosecute users of deepfake pornography. This page deals with the changes to Victoria’s consent laws.

Reasons for the changes

The changes followed the Victorian Law Reform Commission’s report on the justice system’s responses to sexual offences. They also follow many years of campaigning by victim-survivors and victims’ advocates for the laws around sexual consent to be strengthened and for victims to be better supported through the criminal justice process.

The Commission’s report recommended that:

• Victoria adopt a stronger model of affirmative consent
• a Commission for Sexual Safety be established in Victoria
• juries be given better directions about rape myths so that criminal trials are less traumatic for victims
• laws be strengthened around stealthing and image-based abuse

Stealthing

Under the new laws, the practice commonly known as ‘stealthing’ is now an offence in Victoria. Stealthing refers to the removal or tampering with a condom by a person without the consent of their sexual partner.

Section 67 of the Crimes Act 1958 outlines the situations where a person is not to be taken to consent to sex. This provision now explicitly states that a person does not consent to sex if they participate because of an intentional misrepresentation about the use of a condom.

This means that where a person engages in stealthing during sex in Victoria, they can now be found guilty of rape.

Deepfake pornography

Under the changes, new offences have been introduced to address the creation and sharing online of deepfake pornography. Some of the existing image-based offences in the Crimes Act 1958 have also been amended to better capture instances of the use of deepfake porn.

Deepfake pornography is the name given to images that have been digitally manipulated, usually with the involvement of AI, so that they appear to show a real person doing or saying something that they never actually did or said.

While deepfake technology can be used for a range of purposes, the majority of deepfake images that are produced and shared are pornographic.  

Under the changes, the offence of producing child abuse material under section 51C of the Crimes Act now includes instances of images being altered or manipulated (such as in deepfake porn). The offence of

There are also now offences contained in section 53R, section 53S and section 53T that consist of (respectively) producing, distributing and threatening to distribute an intimate image of another person that is contrary to community standards of acceptable conduct. For example, it is now an offence to digitally superimpose a person’s face onto a photograph of a naked person. This offence is punishable by three years imprisonment.  

Affirmative consent

The definition of consent contained in section 36 of the Crimes Act 1958 has been changed. As well as stating that consent means free and voluntary agreement, the provision now goes on to say that a person does not consent to an act simply because they do not resist physically or verbally. It further states that a person is not to be taken to consent to an act simply because they consented to an act on another occasion.

This means that if a person wants to have sex with another person, they must ensure that the other person is actively communicating their consent through words or actions. The onus is on the accused to show that they had reason to believe that the other person was consenting to the sexual activity. The other person bears no responsibility to show that they resisted or actively rebuffed the person’s advances.

Other jurisdictions

Affirmative consent laws have now been introduced in several Australian states. Tasmania, New South Wales and the ACT have all changed their definitions of sexual consent to an affirmative consent model. Queensland has also indicated its intention to adopt affirmative consent laws.

Stealthing has also been criminalized in a number of states including South Australia, Queensland and the ACT.

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