In June 2022, New South Wales proudly stood as the trailblazer among Australian states by rolling out affirmative consent laws. This was a big change in how people think about and define sexual consent. The new rules make it clear as day that everyone’s gotta give a thumbs-up freely and voluntarily before getting involved in any sexual activity.

Under the new laws, a person must do or say something to seek consent from their sexual partner, and they must reasonably believe that consent was given. Silence or lack of resistance cannot be assumed as consent. The reforms also recognise that consent is an ongoing process and can be withdrawn at any time during sexual activity. Understanding these changes is crucial for engaging in respectful and lawful sexual relationships, and effectively dealing with sexual violence.

Definition of Consent

Under section 61HI of the Crimes Act 1900 (NSW), a person consents to a sexual activity if, at the time of the activity, they freely and voluntarily agree to it. Consent is a critical element in sexual assault cases, as engaging in sexual activity without the consent of the other person is a serious criminal offence.

The law emphasises that consent must be present at the time of the sexual activity. Consenting to one sexual act does not imply consent to any other sexual acts. Similarly, consenting to sexual activity on one occasion does not mean there is consent on any other occasion.

Circumstances Where There Is No Consent

The law outlines several circumstances where a person cannot consent or where consent is negated:

• The person does not say or do anything to communicate consent
• The person lacks the capacity to consent due to age, cognitive impairment, or intoxication
• The person is unconscious or asleep
• The person participates due to force, fear of force, coercion, blackmail, intimidation, or unlawful detention
• The person is overborne by the abuse of a position of authority or trust
• The person is mistaken about the nature of the act, the identity of the other person, or the fact that they are married to the other person
• The person participates due to fraudulent inducement

It’s crucial to understand that the absence of physical resistance or verbal objection does not, in itself, constitute consent. Consent must be freely and voluntarily given through words or actions.

Withdrawal of Consent

The law recognises that a person may withdraw their consent to sexual activity at any time. If consent is withdrawn, the other person must stop the sexual activity immediately. Continuing with sexual activity after consent has been withdrawn is a criminal offence.

This provision acknowledges the dynamic nature of consent and the right of individuals to change their minds during sexual encounters. It reinforces the importance of ongoing communication and respect for a partner’s wishes.

What Constitutes “Affirmative Consent”

Under NSW’s affirmative consent laws, consent must be actively communicated through words or actions at the time of sexual activity. The law recognises that consent is a free and voluntary agreement that involves ongoing and mutual communication between participants.

A person cannot be assumed to have consented simply because they didn’t verbally say “no” or physically resist. The new laws make it clear that silence is not consent. For example, if someone “freezes” during a sexual encounter and doesn’t say or do anything, this cannot be taken as consent.

Consent must be present for every sexual act. If someone consents to one type of sexual activity, this does not automatically mean they have consented to other acts. For instance, agreeing to kissing does not imply consent to further intimate contact.

The law emphasises that consent can be withdrawn at any time through words or conduct. Once consent is withdrawn, any sexual activity that continues after that point occurs without consent. This reflects the understanding that consent is an ongoing process rather than a one-time agreement.

A person cannot give consent if they are:

• Asleep or unconscious
• So affected by alcohol or drugs that they are incapable of choosing
• Under force, fear, coercion or intimidation
• Mistaken about the nature of the activity
• Unlawfully detained

The affirmative consent model places responsibility on all participants to ensure mutual agreement exists throughout any sexual interaction. This means actively checking that the other person is willing and able to participate, rather than making assumptions based on their behaviour or past encounters.

Changes to Sexual Consent Laws in NSW

On June 1, 2022, NSW implemented significant reforms to sexual consent laws, marking a shift from the “no means no” approach to an affirmative “yes means yes” model. Under these new laws, consent must be actively communicated through words or actions before and during sexual activity.

The reforms establish that consent is a free and voluntary agreement that cannot be presumed. A person must now do or say something to seek consent, and silence or lack of resistance does not constitute consent. The law recognises that consent is an ongoing process involving mutual communication and decision-making.

Key changes include clarifying that consent can be withdrawn at any time during sexual activity. If someone consents to one sexual act, it does not automatically mean they consent to other acts. Additionally, a person cannot consent if they are heavily intoxicated, asleep, unconscious, or under coercion.

The reforms also introduced five new jury directions to address common misconceptions about consent. These directions clarify that sexual assault can occur between acquaintances or in relationships, doesn’t always involve violence, and that trauma affects people differently.

The NSW Government has implemented targeted education programs for judges, lawyers, and police about the changes. The reforms will be reviewed after three years, supported by analysis from the Bureau of Crime Statistics and Research to evaluate their effectiveness.

Reasonable Steps Requirement

Under NSW’s affirmative consent laws, individuals must take active steps to confirm consent before and during sexual activity. The law requires that reasonable steps be taken to ascertain whether the other person is consenting to each sexual act.

A person must say or do something to find out if their sexual partner consents. Simply assuming consent based on silence or lack of resistance is not sufficient. For example, asking direct questions about what the other person is comfortable with or checking in regularly during intimate activities would constitute taking reasonable steps.

The requirement applies throughout the entire sexual encounter. Consent to one sexual activity does not automatically mean consent to other acts. A person who consents to kissing or touching is not presumed to have consented to further sexual activity.

The law recognises several circumstances where consent cannot be obtained through reasonable steps:

• When a person is asleep or unconscious
• When someone is heavily affected by alcohol or drugs
• When force, threats, or coercion are used
• When a person is unlawfully detained
• When there is an abuse of power or authority

If an accused person did not take reasonable steps to confirm consent, they cannot claim they had a reasonable belief that consent was given. The law places responsibility on individuals to actively seek and confirm consent rather than make assumptions.

A person’s belief in consent will not be considered reasonable if they did not say or do anything within a reasonable time before or during the sexual activity to determine whether the other person consented. The only exception is if the accused had a cognitive or mental health impairment that substantially caused them not to take such steps.

Defences

Under NSW’s affirmative consent laws, the defence of honest and reasonable mistake about consent has been significantly modified. A person must now demonstrate they took active steps to confirm consent was present.

The law requires that any belief in consent must be reasonable in the circumstances. This means simply having an honest belief that someone was consenting is no longer enough – that belief must also be objectively reasonable based on all the circumstances.

A key change is that a belief in consent will not be considered reasonable if the accused person did not say or do anything to ascertain whether the other person was consenting. This places an obligation on individuals to take proactive steps to confirm consent.

For example, if someone initiates sexual activity without checking whether their partner wants to proceed, they cannot later claim they reasonably believed there was consent simply because the other person didn’t resist or say “no.”

The law recognises limited exceptions to this requirement. If an accused person had a cognitive impairment or mental health condition that substantially impacted their ability to seek consent, this may be considered when determining if their belief was reasonable.

A person’s self-induced intoxication cannot be used to excuse a failure to seek consent or to justify an unreasonable belief that consent existed. The court will assess the reasonableness of any claimed belief in consent based on what a sober person would have understood in those circumstances.

The prosecution must still prove beyond reasonable doubt that the accused knew there was no consent, was reckless about whether there was consent, or had no reasonable grounds for believing there was consent. However, the defence must now show what specific actions were taken to confirm consent was present.

Practical Implications of the Law Changes

The new affirmative consent laws have created significant changes in how sexual consent is understood and proven in legal proceedings. Under these reforms, consent must be actively communicated through words or actions before and during sexual activity. Silence or lack of resistance can no longer be interpreted as consent.

The changes mean that individuals must now take active steps to confirm consent. For example, asking a partner if they want to engage in sexual activity or checking that they are comfortable continuing. This shifts the focus from a “no means no” approach to a “yes means yes” model of consent.

These reforms have introduced five new jury directions to address common misconceptions about sexual assault. Judges can now instruct juries that sexual assault can occur between acquaintances or people in relationships, that it doesn’t always involve violence or physical injuries, and that there is no typical response to being sexually assaulted.

The laws clarify that consent to one sexual act does not automatically mean consent to other acts. For instance, if someone consents to kissing, this does not imply consent to further sexual activity. Additionally, consent can be withdrawn at any time through words or conduct.

A key practical change is that the accused person must now demonstrate they took reasonable steps to ascertain consent. This means showing they did or said something within a reasonable time before or during the sexual activity to confirm the other person was consenting.

The reforms also explicitly address the practice of “stealthing” – removing or tampering with a condom during sex without the other person’s knowledge. Under the new laws, consent obtained through intentional misrepresentation about condom use is not considered valid consent.

For legal proceedings, prosecutors can now establish a lack of consent by proving the accused person did not take steps to confirm consent existed. This represents a significant shift in how sexual assault cases are prosecuted and defended in NSW courts.

Conclusion

The introduction of affirmative consent laws in New South Wales marks a significant shift in how sexual consent is defined and understood. By requiring all parties to actively communicate their willingness to engage in sexual activity, these reforms aim to create a clearer, more communicative model of consent that better protects victims and holds perpetrators accountable.

As individuals engaging in sexual activity in NSW, it is crucial to understand and adhere to these new laws. Seeking and confirming consent clearly and continuously throughout a sexual encounter is now a legal responsibility. Failure to do so can result in serious criminal charges, even if the lack of consent was unintentional. By fostering a culture of open communication and respect in sexual relationships, these laws seek to challenge damaging assumptions and create a safer, more respectful society.

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