This submission is being made by the National Foundation for Australian Women (NFAW).
Consent - and how it is defined and defended - goes to the heart of upholding women’s rights to bodily autonomy, agency and self-determination. Without control over their own bodies and selves, women are far less likely to be able to access broader legal, political and economic rights. Personal agency includes the right to decide freely when and with whom to have sex.
In recent years, many states and the Australian Capital Territory have moved, or are proposing to move, towards an affirmative consent model. This represents a significant divergence from the historical emphasis on when consent is not given or not obtainable, rather than when it is. Consent can be deemed to be absent, for example, if the victim-survivor was asleep or unconscious. Complex considerations exist around the accused’s ‘honest belief’, with this approach often reflecting existing power imbalances.
In contrast, affirmative consent means that consent is actively sought and actively communicated. This switches the emphasis from the actions of the victim-survivor to the actions of the perpetrator, and from a ‘no means no’ standard to ‘yes means yes’.
Recommendations:
Recommendation 1: It is NFAW’s strong view that affirmative consent is fairer and more balanced, in that an individual seeking to have sex with another person must obtain clear, expressed consent from them before (and while) engaging in a sexual act. It circumvents some of the complexities and subjectivities associated with contemplation of the perpetrator’s beliefs and the victim’s behaviour.
Recommendation 2: National harmonisation to ensure that all Australian women are protected in similar terms, regardless of where they live, should be pursued. Affirmative consent should be the clear and unambiguous national standard.
Recommendation 3: The harmonisation process must include requirements for jury directions aimed at helping jurors to better understand the nuances and complexities of consent.
Recommendation 4: NFAW supports the development and delivery of education programs regarding clear and unambiguous consent and respectful relationships.
Recommendation 5: Programs and policies must recognise the specific needs of vulnerable groups including women with disabilities and women at risk of family or domestic violence