Chemsex and the law – improving the justice system’s response to drug-related sexual offences

The Victorian Law Reform Commission is currently conducting a review of Victoria’s laws relating to rape, sexual assault and associated adult and child sexual offences. The review will make recommendations to improve the justice system’s responses to sexual offences. The Commission will deliver its report to the Attorney General very soon.

One of the challenges the Commission may face is in dealing with queer sexual practices that fall foul of the criminal law. Practices like cruising, chemsex, beat sex, sexting and BDSM, among others, raise complex issues and have thorny histories when it comes to law reform. Consider the huge furore around ‘bug chasing’ in the context of prosecutions under laws criminalising HIV transmission that were eventually repealed – to take just one example. GLaD research officer Dr Sean Mulcahy recently led a submission to the Commission exploring some of these issues. This post will focus on one particular issue of relevance to the Commission’s work: chemsex and the law.

‘Chemsex’ refers to sexual activities engaged in while under the influence of stimulant drugs. One set of chemsex practices involve the use of drugs such as methamphetamines, mephedrone and GHB/GBL at ‘party ‘n’ play’ sessions among men who have sex with men, particularly in groups at sex on premises venues or in private homes, often organised though sexual networking apps. These types of chemsex practices, which have been widely researched and debated in recent years, raise interesting questions regarding consent.

Notably, the law does not allow voluntary drug sharing where that drug will affect consent. As the submission noted:

Section 46(1) of the Crimes Act stipulates that a person commits an offence if they give a substance to another person that would affect that person’s capacity to give, withdraw or withhold consent to sex. There is no defence to say that the other person consented to taking this substance.

This could include through blowbacks (where one person inhales smoke and then blows it into the mouth of another person), smoking, injecting, swallowing or snorting drugs prepared by another person. And this can, of course, extend to any situation where drugs are given from one person to another. For example, a couple at home sharing drugs.

Many people are able to manage their drug use safely and are able to negotiate sex in a way that works for them. Some undertake risk-reduction activities, such as attending chemsex sessions with friends who can look after them, or discussing safer-sex practices with other participants. However, a recent survey found that one in ten men have reported being sexually assaulted during chemsex sessions, and this includes following voluntary drug consumption. When people do experience sexual assault in these settings, they may also be reluctant to label it as such. This may partly due to complexities around consent norms. Sometimes, in these settings, consent may be assumed. In response, LGBTIQA+ organisations have developed resources on chemsex and consent. How the law should intervene remains a tricky question.

A focus on chemsex might detract from the much wider use of alcohol in licensed venues and its potential role in shaping sexual interactions, including its relevance to consent. Section 46(1) of the Crimes Act could also capture a person buying drinks for another person that they are intending to have sex with, though the explanatory memorandum to the section states that it ‘is not intended to capture someone who seeks to get his or her desired sexual partner “into the mood” with a few drinks’ and that a higher threshold would be required to affect consent. The law thus perpetuates a problematic distinction by treating alcohol and other drugs quite differently, and consideration needs to be given as to why.

It is important that the Commission’s inquiry take into account the diverse views and opinions of queer communities when it comes to the justice system’s response to sexual offences.

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