Concern is mounting about proposed changes to sexual consent laws, as the ACT's top prosecutor labelled the push from the Greens "unfortunately misconceived".
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Greens crossbencher Caroline Le Couteur wants to introduce an affirmative consent model in the ACT that would define consent as "free and voluntary agreement" and require the accused to prove they knew or were "satisfied on reasonable grounds" that consent was freely given.
But in a scathing submission to an upcoming parliamentary inquiry, Director of Public Prosecutions Jon White said the legislation was "at best unnecessary, certainly confusing, and probably regressive".
"The legislation conflates the different aspects of consent, and ignores the crucial aspect of recklessness which, in the area of sexual offending, has developed greatly at common law," Mr White said.
"There is no need for a statutory definition of consent from the point of view of the victim. It is inherent in the meaning of consent at common law that it be freely and voluntarily given. These proposals, although no doubt well intentioned, miss the mark."
However Mr White said given the issue of consent was being considered, there was room for reform.
He said it was time to "sweep away the last vestige of the notorious case of Morgan", a rape case from the United Kingdom that has become known as the "rapist's charter".
In that case, a Royal Air Force pilot named Morgan invited three junior colleagues over to his house in 1973 to have sex with his wife, telling them she was "kinky" and would protest.
All four men dragged Mrs Morgan from the bed she was sharing with her 11-year-old son and brutally raped her.
The three colleagues were charged with rape, while the pilot was charged with aiding and abetting the others to commit rape (he wasn't charged with rape as at the time, being married to the victim gave him a defence under British law).
The three men told the court they honestly believed Mrs Morgan consented to sex, but were convicted of rape. They later appealed to The House of Lords who upheld their conviction but ruled that an honest but mistaken belief a victim was consenting was a complete defence to rape, and the belief did not need to be reasonable as long as the offender honestly believed it.
Mr White said after that case, various parliaments introduced laws requiring any mistaken belief in consent to be reasonable, as well as honest.
But the ACT does not have that clause.
"In the ACT a trial judge must direct the jury in a relevant case that in deciding whether an accused person was under a mistaken belief in consent, that jury may consider whether the belief was reasonable," Mr White said.
"This falls short of limiting the jury's consideration to belief which is reasonable as opposed to simply honestly held. This is in contrast to other jurisdictions such as NSW and Victoria where the belief is limited to those that are reasonably held, and one of the factors to be taken into account in determining this is what steps the accused has taken to find out if the other person consented."
Mr White said it was time to "redefine" this section of law.
YWCA Canberra executive director Frances Crimmins said introducing positive consent laws would arguably diminish or nullify the influence of Morgan v DPP.
She said the current definition of consent and the criminal justice system failed survivors of sexual assault.
"Positive consent can only strengthen relationships and individuals’ understanding of sexual communication and autonomy," Ms Crimmins said.
"People who learn to ask for and confidently give positive consent are also learning to respect their own boundaries, those of their sexual partner and to communicate effectively.
"We believe steps like positive consent, backed up by a strong education campaign, can build a culture that breaks down destructive gender stereotyping and can combat other offences such as domestic violence."
The ACT Legislative Assembly's Justice and Community Safety committee will begin hearings into the proposed changes on Friday.
