Affirmative Consent Laws: Sexual Assault in NSW

After a review by the Law Reform Commission of NSW into sexual assault legislation, affirmative consent will be introduced into law in NSW. Introduced in the Legislative Assembly on 20 October 2021, the Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021 is designed to amend the Crimes Act 1900 (NSW) in relation to consent to certain sexual activities, that, in the absence of consent, are sexual offences.

What is Affirmative Consent?

The new bill reinforces the important principle that consent can never be assumed and introduces an affirmative consent requirement to the Crimes Act 1900 (NSW). Affirmative consent in this context means that ‘the accused person must have sought consent by saying or doing something in order to have a reasonable belief that the other person consented.’ An accused must obtain clear, expressed consent and if this is not established, depending on their actions, they can be found guilty of a number of sexual based offences such as Sexual Intercourse without Consent or Sexual Touching.

What is the Current Law regarding Consent in NSW?

The current law relating to consent in relation to sexual offences is found in Section 61HE of the Crimes Act 1900 (NSW). It sets out that a person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity.

A person who without the consent of the other person engages in sexual activity with or towards that person, knows they do not consent to the sexual activity if:

  1. The person know that the other person does not consent to the sexual activity, or
  2. The person is reckless as to whether the alleged victim consents to the sexual activity, or
  3. the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity.

A court must take into account any steps taken by the person to ascertain whether the other person consents to the sexual activity.

It must also be considered that a person who does not offer actual physical resistance to a sexual activity is not, by reason only of that fact, to be regarded as consenting to the sexual activity.

Further, a person cannot consent to sexual activity if:

  1. They do not have the capacity to consent because of cognitive incapacity or age;
  2. They do not have the opportunity to consent because they are asleep or unconscious; or
  3. They have consented due to threats of force or terror or they are unlawfully detained.

What are the new proposed changes to the Law in NSW?

The proposed new law contains a number of additional sections to the Crimes Act 1900 (NSW).

Under the newly proposed Section 61HI, the definition of consent to a sexual activity is clarified to ‘being a free and voluntary agreement to a sexual activity at the time of the activity by provided the following:

  1. A person may, by words or conduct, withdraw consent at any time,
  2. If a person withdraws consent and the sexual activity continues, the activity then occurs without consent,
  3. The absence of physical or verbal resistance is not, by itself, taken to be consent,
  4. Consent to a particular sexual activity is not, by itself, taken to be consent to other sexual activities,
  5. Consent to a sexual activity with a person is not, by itself taken to be consent to sexual activity with the person on other occasions or with other persons.’

A further newly proposed Section 61HK sets out the circumstances in which an accused person is taken to know that another person does not consent to a sexual activity. It also provides that an accused person’s belief that another person consents to sexual activity is not reasonable if the accused person did not say or do anything to find out whether the other consents. This does not apply if the accused person did not say or do anything because of a cognitive or mental health impairment.

What is the effect of the new proposed laws in NSW?

As noted in the Second Reading Speech before the Legislative Assembly, ‘The law of consent reflects community standards of respectful sexual relations. This means that, where there is consent that continues to be reciprocated by each participant—for example, through body language—a person will not need to say expressly at each step, “Do you consent now?” Consent can be imparted through non‑verbal cues and encouragement. While consent to one sexual activity is not a substitute for consent to a different sexual activity, a person can, through their words or actions, indicate their consent to a range of sexual activities. The reforms ensure that consent can also be withdrawn by words or conduct—see proposed section 61HI (2). This requirement serves to provide fairness to an accused because it precludes an internal—that is, in their own mind—withdrawal of consent to, for example, penetration when that withdrawal is not communicated.

Ultimately, affirmative consent shifts the emphasis from the actions of the complainant in a sexual matter to that of the accused. At first glance, one of the criticisms of the proposed changes rests on the long-held presumption of innocence that an accused is entitled to. The onus of proof in a criminal matter ultimately rests with the prosecution, however, these proposed changes purport to reverse that onus and emphasise the actions of the accused to obtain consent. In other words, it appears that it is now up to an accused person to prove knowledge of consent at each step.

What Should I do if I have been Charged with a Sexual Offence?

Sexual offences are treated incredibly seriously by the courts. If you are convicted of a sexual offence, you are at significant risk of receiving a full-time custodial sentence. A significantly high number of these type of matters ultimately turn on the issue of consent. It is often the most important factor when considering cases of this type and it can be quite a complex issue. It is very important that if you are charged with a sexual offence that you receive in-depth and extensive legal advice.

The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. If you have been charged with a sex-based criminal offence and require legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss your matter with one of our lawyers.

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