Explained: Why Queensland is considering bringing in ‘affirmative consent’ laws

What is affirmative consent

According to Suffolk University, affirmative consent “must be informed, voluntary, and active, meaning that, through the demonstration of clear words or actions, a person has indicated permission to engage in mutually agreed-upon sexual activity. Affirmative Consent can be withdrawn at any time, and cannot be obtained by force, expressed or implied, or when physical violence, threats, intimidation and/or coercion is used.”

The university’s website adds, “Affirmative consent to one form of sexual activity does not, by itself, constitute Affirmative Consent to another form of sexual activity. Past consent to sexual activity with another person does not imply ongoing future consent with that person or consent to the same sexual activity with another person.”

What is the panel

The report has been submitted by Queensland’s Women’s Safety and Justice Taskforce to Attorney General Shannon Fentiman, who is also the Minister for Justice, Minister for Women and Minister for the Prevention of Domestic and Family Violence.

The Taskforce was formed by the Queensland government to examine the specific offence of domestic violence and the experience of women in the criminal justice system.

After the Taskforce submitted its first report regarding domestic violence in May this year, the government said all 89 recommendations would be adopted.

The second report, ‘Hear her voice — Report two — Women and girls’ experiences across the criminal justice system’, was submitted recently by Taskforce Chair Margaret McMurdo AC.

According to a statement by the Queensland government, “The Attorney-General said the findings and recommendations of the second report would be carefully considered by the Government, including further considerations to the Queensland’s consent laws.”

What were the findings of the Women’s Safety and Justice Taskforce?

The Taskforce, which has been working on the report for the past 19 months, held 79 consultation forums and engagements with Queensland’s judiciary, legislators, police, policymakers, academics and service providers.

It also met with women and girls who had been victims of sexual violence in supported meetings.

“Victim-survivors told us they want changes to the law about sexual assault so the focus is on the actions of the accused person, not what the victim said, did, drank or wore,” McMurdo said.

The Taskforce received 252 submissions from sexual assault victim-survivors as well as 19 from offenders.

Out of the 188 recommendations of the Taskforce, 92 “aim to improve the experience of women and girls as victim-survivors of sexual assault, while taking care not to compromise accused persons’ right to a fair trial”.

The Taskforce has recommended the Queensland Government to implement an education campaign regarding sexual consent as well as addressing rape myths.

“Overwhelmingly, victim-survivors wanted the stigma attached to acknowledging and confronting sexual assault removed. Knowing that they will be supported – not shunned, is the first step towards victim-survivors feeling safe enough to report sexual assault,” McMurdo said in a statement.

The Taskforce has also recommended the government amend the state’s laws in order to integrate affirmative consent into the judicial system.

Upon receiving the report by the Taskforce, Shannon Fentiman said in a statement, “It is vital for the government to receive comprehensive, evidence-based recommendations to help remove any barriers for women coming forward to utilise the justice system…The prior work and recommendations of the Women’s Safety and Justice Taskforce speaks volumes. These are complex issues that require significant consideration to determine how best to strengthen our criminal justice system to better respond to women and girls experiencing violence.”

What were the key recommendations of the Taskforce regarding sexual violence cases?

The key recommendations by the Taskforce included awareness regarding sexual consent, bursting rape myths and sending targeted messages to communities. It also said the definition of consent should be changed and victims shouldn’t be questioned on mistakes of facts.

The Taskforce stated that Queensland Police Service needed changes in order to encourage victims to report sexual violence crimes and to minimise withdrawal of such reports.

An independent statutory body, the independent victims’ commission, be set up to protect and promote the needs of sexual violence victims, the report recommended.

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The Taskforce has also sought a change to be brought to evidence laws to protect survivors of sexual violence cases.

The Taskforce has also urged the Queensland government to work towards decriminalising sex work.

What are the victim accounts mentioned by the Taskforce?

The Taskforce mentions a series of victims’ accounts, some of them being:

‘I was questioned in a cold, accusing manner about the incident, in a way that made me feel I was being questioned as a perpetrator rather than a victim. I was questioned about what I was wearing the night of the incident, how much alcohol I had consumed prior … how often I attended bars (I was underage). At no point was I treated with any respect, dignity, compassion or kindness.’

‘All the current justice system does is retraumatise rape victims. Being constantly asked for more details of an event you’ve tried to forget and bury is brutal. And you go through all these administrative hoops and it takes months and months of your time. All you get at the end of it is nothing. No justice.’