Federal Labor Senator Nita Green has recently moved to establish a Senate inquiry into sexual consent laws.
These are the laws that describe how sexual consent is defined for rape and sexual assault offences. In Australia, these definitions differ across the states and territories, which causes inconsistencies and confusion, as well as complexities in sexual consent education.
The varying definitions create a situation where victims are protected differently depending on what jurisdiction they live in. This makes it challenging to send clear and unambiguous messages about what the law requires in sexual encounters.
One focus of the inquiry would be to look at whether there are benefits to aligning, or harmonising, the definitions across Australia.
This area of law has been under the spotlight following recent legal changes in NSW, the ACT and Victoria. Each has taken law reform steps towards an affirmative consent standard, which means consent is understood as ongoing communication.
Each person must say or do something to indicate consent and check that the other is willing to proceed. Tasmania was the first state to move towards affirmative consent in 2004.
The current push to harmonise sexual consent law is important and timely. It would help support educational efforts around sexual consent and reduce confusion about the law. It has the potential to clarify the standard of ongoing communication expected before and during sex – a crucial component of affirmative consent models.
Risks and challenges
Nonetheless, the push to harmonise sexual consent laws faces significant risks and challenges.
We recently conducted the first comprehensive academic study of the prospects for success in this area, which is due to be published in mid-2023.
One risk is what we term the “levelling-down” problem. This occurs when jurisdictions that are progressive and reformist adopt legal principles favoured by less reformist ones to achieve common standards. Harmonisation to the lowest common denominator risks slowing needed reforms.
In the case of sexual consent laws, it seems unlikely that Tasmania, NSW, the ACT and Victoria, having endorsed affirmative consent, would roll back those reforms to attain uniformity. This suggests harmonisation should aim at some form of affirmative consent standard.
However, although these jurisdictions have moved towards affirmative consent, their laws differ in their details. For example, they apply different tests for whether a defendant has a reasonable but mistaken belief in consent, which provides an excuse for rape charges.
Deep-seated differences also exist between common law and code-based criminal law jurisdictions. These differences would need to be overcome to produce a common model.
There are other reasons why legal harmonisation may not be easy. Criminal law reform – and sexual offence law in particular – tends to engage strong advocacy coalitions.
These advocacy groups, on all sides of the issue, often have entrenched positions that are difficult to change. Some engage in public advocacy and media work, while others rely on informal networks and lobby behind the scenes.
The difficulty of satisfying all these groups creates a challenging political dynamic. It gives legislators an incentive to preserve the status quo.
For example, the strong opposition of the Queensland Law Society and Bar Association to consent law reforms in that state arguably explains the past reluctance of the state government to drive legal changes in this area.
The history of criminal law harmonisation in Australia also sounds a note of caution. For example, the campaign for a Model Criminal Code in the mid 1990s – which aimed to craft a common criminal code for all Australian jurisdictions – fell well short of its aims.
Persistence will be needed
History suggests harmonisation won’t occur unless done in a politically strategic way that aims to build a broad consensus for reform – while also being willing to push past the objections of groups that actively work to preserve the status quo.
The harmonisation effort must be accompanied by prolonged attention, political will and sufficient resources if it’s to overcome jurisdictional differences, historical inertia and entrenched views of advocacy coalitions within the criminal law arena.