In the past two months, huge strides have been made in consent law across Australia. NSW’s affirmative consent model passed the lower house last week, similar laws have been proposed in Victoria, and various other states are reconsidering their sexual assault legislation. The NSW bill signifies significant progress towards a best practice affirmative consent model, and there are promising signs that other states will follow suit.
What is affirmative consent?
The key change in both the NSW bill and Victoria’s proposed laws is the adoption of an affirmative consent model. Affirmative consent should be fairly simple in practice: it's the idea that consent should always be communicated, with all parties giving and seeking consent before engaging in sex, and continuing this conversation throughout. Legislating affirmative consent is a whole other beast, however. This area of law has always been difficult to legislate, due to its highly contextual nature and the broad scope it covers.
The approach the NSW bill has taken is to confirm that a belief in consent is not reasonable if nothing was said or done to seek consent, rejecting the possibility of claiming consent was assumed. Dr Rachael Burgin, executive director of Rape and Sexual Assault Research and Advocacy, says this is a crucial element of the affirmative consent model.