New sexual consent laws came into force in NSW on 1 June.
Consent in relation to sexual offences is now governed by Part 3, Division 10, Subdivision 1A of the Crimes Act 1900. The new subdivision applies to the offences of ‘sexual act’, ‘sexual touching’ and ‘sexual assault’ (and their aggravated versions).
The subdivision sets out the circumstances in which a person consents or does not consent to a sexual activity, and the circumstances in which a person knows or is taken to know that another person does not consent to a sexual activity.
How is consent defined?
Consent is defined as meaning that a person consents to a sexual activity if, at the time of the sexual activity, they freely and voluntarily agree to the sexual activity.
The addition of the words “at the time of the sexual activity” means that consent must be obtained every time, including for the duration of any sexual act. Section 61HI of the Act also sets out the following general principles the when it comes to consent:
- A person may, by words or conduct, withdraw consent at any time;
- Sexual activity that occurs after consent has been withdrawn occurs without consent;
- A person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity; and
- A person who does not offer physical or verbal resistance to a sexual activity is not, by reason only of that fact, to be taken to consent to the sexual activity.
The latter means that a person who “freezes” out of fear and is not able to communicate, does not consent to sex. In other words, consent must be communicated in some way. This is known as an affirmative model of consent.
The law recognises circumstances in which a person does not consent to a sexual activity. They include:
- the person does not say or do anything to communicate consent
- the person does not have the capacity to consent
- the person is incapable of consenting due to intoxication
- the person is unconscious or asleep
- the person participates in the sexual activity because of force, fear of force or fear of serious harm of any kind
- the person participates in the sexual activity because of coercion, blackmail or intimidation
- the person is mistaken as to the identity of the other person.
What does the prosecution need to prove?
In criminal proceedings, the prosecution must prove beyond reasonable doubt that the complainant did not consent to the sexual activity and that the accused person knew that there was no consent. An accused person is taken to know there was no consent if:
- They know the complainant does not consent;
- They are reckless as to whether the complainant consents, or
- They have no reasonable grounds for believing the complainant consents.
- A belief is not reasonable if the accused person did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person was consenting. There is an exception to this requirement if an accused person has a significant mental health or cognitive impairment.
Click here to read more about the history of the reforms to NSW’s sexual consent law