The ACT government will consider introducing new laws to create a definition of sexual consent which does not require verbal or physical resistance.
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It has agreed to a recommendation to consider creating a definition of sexual consent based on a concept of free and voluntary agreement, and affirmative and communicative consent.
But the government will not consider the changes until the findings from the current NSW Law Reform Commission inquiry in relation to sexual offences are available.
It comes after a private members bill was introduced by Greens MP Caroline Le Couteur and would have installed an affirmative model of consent, in effect yes means yes instead of no means no.
That bill was last year referred to the justice and community safety committee which made 10 recommendations.
The committee recommended against introducing Ms Le Couteur's bill in its current form citing clear technical issues.
One of the more controversial elements of Ms Le Couteur's proposed bill was that a perpetrator would have to prove they knew, or would have known, consent was freely given.
The government agreed that should not be part of any consent laws to be created.
The committee recommended against introducing Ms Le Couteur's bill in its current form, citing clear technical issues.
One of the key recommendations agreed to by the government was to consider a definition of consent based on the concept of free and voluntary agreement, and affirmative and communicative consent.
It noted the ACT was the only state or territory without a statutory definition of consent.
"It is important that ACT laws reflect community standards and expectations," the government said.
"Adopting a legislative definition of consent based on 'free and voluntary’ agreement for sexual offences
aims to establish a positive model of consent which reflects the reasonable views of contemporary society and promotes respect and communication in relation to the issue of consent.
The government said the use of the word agreement in the definition emphasised consent was something to be sought and communicated rather than assumed.
"It affirms that a lack of consent does not require verbal or physical resistance, and that submission to sexual advances cannot alone demonstrate consent," the report read.
"As acknowledged in the committee’s report, and by the submissions provided through the inquiry, the complexity of the issue is in how the objectives of the affirmative and communicative model of consent can be achieved in a way which balances the right of the accused to a fair trial with the needs of the complainant and the interests of the community more broadly."
It said the changes aimed to clarify the law on consent and ensure just outcomes for the prosecution of
sexual offences.
