Review of Sexual Consent Laws (SA)

The South Australian government is currently conducting a wide-ranging review of the state’s laws around sexual consent, sexual offences and the criminal procedures surrounding trials for sexual offences. The review follows the introduction of affirmative consent models of sexual consent in several other Australian jurisdictions. This page outlines the questions being considered by the South Australian review and why it is being conducted.

Background

Sexual violence is an ongoing problem throughout Australia and evidence suggests that it is increasing. There is also a large amount of sexual offending that goes unreported and where prosecutions do not commence or do not continue.

Rape myths and gender stereotypes also contribute to misconceptions about the nature of sexual assault.

The South Australian review of sexual consent laws follows moves by several other Australian states and territories to amend their laws about sexual consent to bring them into line with community expectations.

Current definition of consent

In South Australia, the current definition of consent is set out in section 46 of the Criminal Law Consolidation Act 1935. That provision defines consent as, ‘free and voluntary agreement’.

Section 46 lists the situations in which a person is not to be taken to have consented to sexual activity. These include where the person is subjected to threats, unlawfully detained or asleep or unconscious and where the person is too intoxicated to consent.

Under the Evidence Act 1929, a person must not be seen as having consented to sex simply because they did not resist.

A person commits an offence if they proceed with a sexual act:

• knowing that the other person does not consent; or
• being recklessly indifferent as to whether they consent.

The review of sexual consent laws will consider whether the list of situations where a person should not be seen as having consented needs to be expanded.

Stealthing

Section 46 also states that a person does not consent to sex if they agree because of a misrepresentation about the use of a condom.

The definition of consent was amended in 2022 to include this subsection, which criminalises the practice often referred to as ‘stealthing’. Stealthing occurs when a person removes or tampers with a condom during sex without the other person’s consent.

The reform makes it clear that consent is no longer valid after stealthing has occurred.

Affirmative consent

An affirmative consent model of sexual consent involves a requirement that a participant in a sexual activity actively say or do something to find out whether the other person consents.

Under this model, it is not enough to show that the other person did not resist or that the accused had no reason to think that they were not consenting. Positive steps must be taken to communicate consent either through words or actions.

The affirmative consent model recognizes the common ‘freeze response’ to trauma that may result in a person being unable to express that they do not consent to sex.

At present, under South Australian law, positive steps are not required to ascertain whether a person consents to sex. However, under section 47 of the Act, a person can be found to have been recklessly indifferent as to consent if they were aware that the person might not be consenting and failed to take reasonable steps to find out if they were consenting.  

Image-based offences

In South Australia, the Summary Offences Act 1953 contains offences relating to the recording and sharing of images without consent. These offences include distributing or threatening to distribute an invasive image of another person without consent.

As these offences are summary offences, the maximum penalties they can attract are relatively low. Given the increasing prevalence of this type of offending, the review is considering whether these offences and their maximum penalties are adequate, or whether they need to be changed.

Jury directions

When a person is tried for a sexual offence involving a lack of consent in South Australia, there are certain directions that the judge must give to the jury about consent. These are set out in section 34N of the Evidence Act 1929. Jury directions about consent aim to address misconceptions that jurors may have about consent or about the behaviours of the accused and the alleged victim.

Jury directions that are currently given include:

• that there is no ‘typical’ or ‘normal’ response to non-consensual sexual activity
• that the fact that a witness either is or is not emotionally distressed when giving evidence does not mean that they are not telling the truth.

The review will consider whether the list of jury directions set out in section 34N of the Evidence Act should be expanded.

Other states

Affirmative consent models have been adopted in New South Wales, Victoria and Tasmania. Those states have also criminalized the practice of stealthing. Queensland recently announced its intention to change its consent laws to an affirmative consent model.

Make a submission

The government is taking submissions from the public on the proposed reforms by email at [email protected] until 12 February 2024.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.