Affirmative consent and ‘stealthing’ laws to be introduced to Victorian parliament

Laws to introduce affirmative consent, criminalise "stealthing" and target "deepfake" porn are set to be introduced into the Victorian parliament by the state's attorney general, Jaclyn Symes.

The Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022 will be introduced to parliament on Thursday and, if passed, will impose a responsibility for consent to be given before engaging in sexual activity from June 2023.

Consent can include - but isn't limited to - verbally asking and getting a "yes", a physical gesture such as a nod or reciprocating a move such as removing clothes.

Stealthing - the removal, non-use or tampering of a condom without the other person's knowledge or consent - will also be made a crime under bill. Image-based sexual abuse, such as taking intimate videos of someone without their consent and distributing, or threatening to distribute, intimate images - including deepfake porn - will also be targeted.

Symes said the affirmative consent model would shift scrutiny in sexual assault matters from the actions of the victim and on to those of the accused offender.

"We want to make sure that women, in particular, are able to come forward and report crime and not feel shamed and have the spotlight put on them and what they did or didn't do," she told Guardian Australia.

Symes said "outdated stereotypes" - such as what a victim was wearing at the time of a sexual assault, if they had willingly gone back to an accused offender's house or communicated with them after the assault - had continued to "creep into the justice system".

The legislation would include new jury directions to address such misconceptions in sexual offence trials, she said.

Australia has been engaged in a national conversation about consent in the wake of several high-profile cases, including that of Brittany Higgins, Grace Tame and Saxon Mullins, and a petition launched by the former Sydney school student Chanel Contos, which detailed disturbing accounts of sexual assault.

Symes said she was incredibly proud of young women today.

"I consider myself a feminist from way back in high school, but I just can't believe what we tolerated as women, you know, in nightclubs in your 20s and getting a tap on the bum," she said.

"Young women don't stand for that crap any more and I love it, I find it really motivating as someone that is in a position to speak about these issues and bring in new laws.

The bill follows the Victorian Law Reform Commission's (VLRC) Improving the Justice System Response to Sexual Offences report, which found sexual violence is widespread, causes serious harm and is significantly underreported. Even when reports are made many cases don't make it to court.

Symes said 13 of the VLRC's 99 recommendations were addressed in the bill, with the remainder being considered in detail, and would form a part of the government's 10-year strategy to address sexual violence and harm.

The strategy was expected to be released in 2022 but had been delayed due to the complex consultation under way, she said.

The government consulted more than 122 parties when drafting the bill, including Victoria police, the Victorian Bar, the Law Institute of Victoria, LGBTQ+ groups and sex worker organisations.

"I'm under no illusion that everyone's going to love this. But it is great reform and we'll continue to have conversations as it's implemented," Symes said, adding that funding had been allocated for an education campaign to support the changes.