Affirmative Consent (NSW)
The only legal defence available to a charge of sexual intercourse without consent, and to many other sexual offences, is the defence of consent. In 2022, New South Wales amended its laws on sexual consent to an affirmative consent model. This page outlines NSW’s affirmative consent laws.
Legislation
The Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 made changes to the Crimes Act 1900 and to the Criminal Procedure Act 1986.
Sexual offences
All sexual offences against adults, with the exception of incest, are based on a lack of consent by the complainant.
A person charged with a sexual offence involving a lack of consent has a defence available if:
- the complainant consented to the act; or
- the accused believed on reasonable grounds that the complainant consented to the act.
Definition of consent
Section 61 HI of the Crimes Act 1900 defines consent as free and voluntary agreement.
A person does not consent to sexual activity that occurs after consent has been withdrawn.
A person is not to be taken to consent to sexual activity only because:
- they do not offer verbal or physical resistance
- because they consented to other sexual activity
- because they consented to sex with the same person or another person on another occasion
Where there is no consent
Section 61HJ sets out the circumstances where there is no consent. Consent is not given where:
- a person does not do or say anything to communicate consent
- a person does not have the capacity to consent
- a person is not affected by drugs or alcohol that they do not have the capacity to consent
- a person is unconscious or asleep
- a person participates because of force, fear of force, or fear of serious harm
- a person participates because of coercion blackmail or intimidation
- a person participates because they are unlawfully detained
- a person participates because they are overborne by the abuse of a relationship of authority, truth and dependence
- the person participates because they are mistaken about the nature or purpose of the activity
- the person participates because they are mistaken about the identity of the other person
- the person participates because of a fraudulent inducement.
Belief as to consent
The most significant addition to the Crimes Act 1900 is the addition of section 61HK. This provision clarifies when an accused person can and cannot rely on the defence of consent.
Under the provision, a person is taken to know that another person is not consenting if:
- they actually know that the other person does not consent
- they are reckless as to whether the other person consents
- they believed that the other person was consenting but that belief was not reasonable.
A belief in consent will be found not to be reasonable if the accused did not say or do anything immediately before the act to find out whether the other person consented to the act.
What has changed?
The introduction of section 61HK to the Crimes Act means that accused persons may no longer rely on beliefs about consent that are based on stereotypes or irrelevant factors such as a person’s behaviour.
It also means that an accused person may no longer rely on their own failure to ensure that the other person was consenting to every type of sexual activity at every stage of the encounter.
As the law now stands, a person who engages in sexual activity with another person is responsible for actively seeking consent to every activity before the activity starts, and for ensuring that consent given earlier has not been withdrawn.
Impact of affirmative consent laws
The affirmative consent laws have been applauded as making legal definitions clearer and aiding successful prosecutions. However, as yet, there is no comprehensive data available as to how or whether the laws have changed legal outcomes such as rates of prosecutions and convictions.
A review of the operation of the laws is due to be conducted by the NSW Bureau of Crime Statistics and Research (BOCSAR) three years after their implementation.
The laws have also been hailed as an important step in improving community understandings consent.
The NSW government has launched a Make No Doubt campaign, which aims to educate the public about how to ask for consent. Its slogan is ‘check consent, every time.’ New South Wales schools will also incorporate education about consent into the curriculum for students from the age of eleven.
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