Changes introduce affirmative model of consent, make 'stealthing' a circumstance of non-consent
An amendment to the Criminal Code, effective in Queensland starting this week, introduces an affirmative model of consent. This aligns the state with other Australian jurisdictions that have adopted this model.
A joint statement – made by Yvette D'Ath, Queensland’s attorney-general and minister for justice and minister for the prevention of domestic and family violence, and Shannon Fentiman, Queensland’s minister for health, mental health and ambulance services and minister for women – called attention to the effectivity of the amendments.
The affirmative model of consent requires participants to sexual activity to mutually agree to the activity and to say or do something to seek consent. The party being asked should communicate the consent back to the asking participant.
The reforms also explicitly include stealthing – which is non-consensually removing or tampering with a condom before or during consensual sexual activity – as a circumstance of non-consent and rape.
“A person who engages in ‘stealthing’ or removing a condom without the other person’s knowledge or consent is now effectively committing rape and will be prosecuted accordingly,” D’Ath said in the joint statement.
“Importantly, our new laws better reflect community expectations by recognising stealthing for what it is – rape,” Fentiman reiterated in the statement.
The recently effective changes in the laws also seek to reduce the influence of rape myths on jury deliberations and decisions at sexual offence proceedings by providing new jury directions, with provisions updated to prohibit improper questions.
The amendments also expand the reasonable excuse provisions for the ‘failure to report’ offence and the admissibility of preliminary complaint evidence in domestic violence offence proceedings. The laws have also been updated to better protect victim-survivors of sexual offences.
These legislative reforms, which arose from the Women’s Safety and Justice Taskforce’s recommendations, are codified in the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024, passed by the Miles government last March.
“The Taskforce found that sexual offence laws are often misunderstood, and rape myths and stereotypes, including narratives of ‘implied consent’, still feature heavily in trials,” D’Ath said in the statement.
Next May, other reforms will take effect in connection with the new criminal offences of coercive control and domestic violence or associated domestic violence to aid a respondent, as well as a court-based domestic violence perpetrator diversion scheme for adults.
To prepare for these upcoming changes, the government expects to roll out community awareness and education activities, updates to court policies and procedures, and relevant training for stakeholders such as court staff and police officers.
Fentiman noted a 20-percent boost in funding for the government’s sexual violence services. “We will continue to invest in awareness campaigns that educate Queenslanders because we know we need more than changes to the law; we need our communities to change too,” Fentiman added in the joint statement.
Last month, two community awareness campaigns started to promote the affirmative model of consent and the recognition of coercive control’s patterned nature and impacts.
