The Criminal Bar Association, writing in The Age, has also expressed concern that the reforms could lead to unfair and unintended outcomes.
But Rape and Sexual Research Advocacy chief executive Dr Rachael Burgin said Victoria had yet to secure affirmative consent.
“Ultimately, it’s good to see governments investing in reforms in this historically fraught area of the law,” he said. “[But] they do not obtain affirmative consent”.
Burgin said the reforms did not meet the affirmative consent test because the new laws do not require consent to be given continuously through words and actions. Victoria and NSW still left consent open to interpretation, he said.
“It basically tells us what consent is not: It’s not frozen, it doesn’t mean no.”
Theft, the act of removing protection during sex without consent, will also become a crime.
Regulations on revenge porn and other image-based abuse, such as fake porn, where a person’s image is altered to falsely appear to be doing something sexual, will also be strengthened.
Attorney General Jaclyn Symes said the reforms ensure the law matches community expectations.
“Victorians have made it clear that there is no place for victim-blaming and outdated attitudes about sexual violence,” he said.
“These new affirmative consent laws will ensure that our justice system keeps up with these expectations.”
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The reform was also a key recommendation of the Victorian Law Reform Commission, which found that sexual violence was widespread and underreported, and that surviving victims needed better protection against trauma when seeking justice.
The Justice (Sexual Offenses and Other Matters) Amendment Bill 2022 was passed in the upper house on Tuesday night, with only one vote against from crossbench MP Catherine Cumming.
Ros Spence, the Minister for the Prevention of Family Violence, said the reforms would shift the focus from the victim to the accused.
“This is a crucial step to stop all forms of violence against women,” she said. “Every Victorian has a responsibility to challenge the harmful behaviours, attitudes and assumptions that lead to sexual violence.”
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