New Tas Bill Proposes Amendments to the Definition of Consent

Thursday 17 March 2022 @ 11.21 a.m. | Crime | Legal Research

The Criminal Code Amendment Bill 2022 (Tas) (the “Bill”), was introduced to Tasmania’s House of Assembly by the Minister for Justice Elise Archer (the "Minister") on 8 March 2022. The Bill proposes a number of amendments to the Criminal Code Act 1924 (Tas) (the “Act”).

Background

The Bill’s Explanatory Memorandum explains that:

"[the Bill seeks to amend] the definition of consent in section 2A the Criminal Code 1924 to make it plain that there is no free agreement to sexual intercourse in the event of certain conduct regarding condoms (colloquially known as ‘stealthing’) and creates a new offence of ‘Strangulation, &c.’ as well as related provisions regarding alternative convictions and arrest power for this new offence."

The Bill proposes amendments to the definition of consent in section 2A. The  Explanatory Memorandum explains that the amendments clarify that:

"a person does not freely agree to an act of sexual intercourse with another person if:

  • the person says or does anything to communicate to the other person that a condom must be used for that sexual intercourse; and
  • the other person, intentionally, before or during the sexual intercourse, does not use a condom or tampers with or removes the condom."

The Bill also seeks to establish a new offence of "Strangulation, &c.", which would provide that intentionally and unlawfully choking, suffocating or strangling another person an offence. If passed, this offence would require the prosecution to prove intent and would carry a maximum penalty of 21 years imprisonment.

Comment on the Bill

The Minister commented in her speech:

“The [Bill] delivers on the Government’s clear commitment to strengthen non-fatal strangulation laws, by introducing a new stand-alone criminal offence for strangulation … I have prioritised the development of this important reform, in recognition that non-fatal strangulation, choking or suffocation is a significant form of violence … This is in response to community calls for the strengthening of our laws since the Coroner’s 2019 recommendation that the Government consider creating a strangulation offence.”

In commenting on the Bill's exposure draft, the Women’s Health Tasmania noted that they:

“welcome the proposed legislation. Our colleagues in the sector have written convincingly of the many merits of this law. We add to this work by emphasising the incredible individual, family and community toll that family violence has on health. Non-fatal strangulation carries with it particular harms and risks that make creating it as a standalone, indictable offence an appropriate and important measure.”

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Criminal Code Amendment Bill 2022 (Tas) and supporting materials available from TimeBase's LawOne Service

Submission on Criminal Code Amendment Bill 2022 (18 February 2022, Women's Health Tasmania)

Related Articles: