FAQs
- there is no typical or normal response to non-consensual sexual activity
- a lack of consent can occur in many different circumstances - including between people in a relationship, and not always by a stranger in a public place
- the presence or absence of emotional distress when giving evidence doesn't mean a person is not telling the truth
- a person didn't consent because they wore particular clothing or were drinking.
What is an affirmative consent model?
Affirmative consent is when a person does or says something to find out if the other person consents to sexual activity.
This model places the responsibility on everyone involved in the sexual activity to continually make sure consent is given throughout. Consent cannot be assumed just because the other person didn't resist.
In a legal sense, this model also helps address the 'freeze response' many victims experience, where they cannot physically say or do anything to express their disagreement.
In South Australia, there is currently no requirement to take these positive steps to confirm someone's consent - instead, someone consents if they 'freely and voluntarily agree to the sexual activity'.
Read our discussion paper for more about our consent laws in South Australia.
What is a jury direction?
In a trial by jury, the judge gives the jury directions to help them understand the law before they reach a verdict.
For sexual offences, jury directions can help counter misconceptions jurors might hold.
Currently in South Australia, there is a list of things a judge must tell the jury in sexual offence cases. These directions include that:
Read our discussion paper for more information about jury directions.
What are image-based sexual offences?
Image-based sexual offences include filming and sexting offences, where intimate and invasive images are shared without consent.
In South Australia, these types of offences are included in the Summary Offences Act, and the maximum term of imprisonment is two years (unless the victim is under 17, where the maximum penalty is four years).
These offences could potentially be moved to the Criminal Law Consolidation Act and the penalties increased.
A large number of these types of offences involve young people, so other jurisdictions have implemented additional provisions that require the consent of the Director of Public Prosecutions to prosecute someone under the age of 16.
Read our discussion paper for more information about image-based sexual offences.
