Tasmania’s current laws governing consent to violence need to be updated to protect people at risk of family violence, new research shows.
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The Tasmania Law Reform Institute has released its recommendations about the circumstances when a person can consent to being assaulted in the report Consensual Assault.
Former Attorney-General, the late Vanessa Goodwin, asked for the Institute to investigate the issues surrounding consensual assault.
Report author Dylan Richards said updating the archaic language in the state’s Criminal Code would help eliminate ambiguity about consent to violence in situations of family violence.
“It would be a small reform that would be meaningful for the judiciary,” Mr Richards said.
“We hope that the new Attorney-General will act on it.”
Mr Richards said the idea that a person might consent to an assault seemed unusual, but normally consent was a defence to assault.
He said the limits on the circumstances when consent can be a defence to assault were set down in section 182(4) of the Tasmanian Criminal Code.
“Unfortunately, that section is a mixture of archaic language and outdated thinking about permissible violence,” Mr Richards said.
“In particular, it does not address the problem of violence in the home.
“This means that it may leave those who are particularly vulnerable to family violence without adequate protection.”
Mr Richards said when the State’s current law was developed in the 19th century, the main concern was preventing public disturbances of the peace.
“There was little concern about violence inflicted in the privacy of people’s homes,” he said.
As a result, section 182(4) does not deal with violence inflicted in private.
“This is an obvious anomaly,” Mr Richards said.
“Nowadays, there is considerable concern about domestic and family violence.
“Additionally, its impact upon children has increasingly been recognised as a significant social ill.”
Mr Richards said the current law was unclear and presented considerable difficulties for judges and juries.
“The archaic language used in section 182(4) makes it difficult for judges to direct juries on when consent is not a defence to assault,” he said.
“It also means that juries have to make decisions based on 19th-century concepts for which there is no real modern equivalent.”
