From 1 June 2022, the new laws in NSW require parties to a sexual act to give and obtain consent at the time of the act. A person is not considered as having consented unless they say or do something to indicate that consent has been given.
What is affirmative consent?
These changes are commonly referred to as affirmative consent. There are two main elements of affirmative consent. First, if a person is passive - says or does nothing before any sexual acts starts, or while it continues, then they don’t consent. No ifs, no buts, passive sex is non-consensual sex. Second, if a person does not say or do anything to find out if the other person consents to each sexual act and its continuation within a reasonable time that person is taken to know that the other person does not consent.
What’s changed from the old to the new law?
A key change in the new laws is the inclusion of communicative and affirmative consent language in the NSW Crimes Act. In particular, it states that consent to sexual acts must be communicated by words or actions, and that there is a responsibility to take steps to find out whether the other person is consenting. Key components of sexual offences have been changed through the rules governing proof of non-consent and proof of knowledge of non-consent. However, a lot of the sexual offences framework remains the same or implicit elements have been explicitly outlined.
Some key changes
The following is reflected in the law changes:
First, in sexual assault trials defence could challenge the Crown’s ability to prove non-consent by citing evidence that the complainant did nothing to manifest non-consent, such as silence or lack of resistance. From now on, NSW law provides that evidence that a person did not say or do anything to communicate consent will be evidence of non-consent.
Second, an accused person can no longer assert that their belief that the other person was consenting was reasonable unless there is evidence that they took steps – by words and/or actions – to find out.
Other changes include clearer recognition that sexual consent involves ongoing and mutual communication, that a person has the right to withdraw consent at any time, and that if someone gives consent to one sexual act, it doesn’t mean they’ve consented to other sexual acts.
The law change also expands the list of circumstances in which ‘apparent’ consent will be treated as non-consent. The list now includes: fear of serious harm to person, property or animal; coercion, blackmail or intimidation; and fraudulent inducement such as trickery.
Changes or elaborations in the new law
Issue / changes to the existing law | ​Old law | New law |
You can’t assume someone is consenting because they don't say no. Silence is not consent. | Old s61HE(9) covered this issue. (all sections are to the Crimes Act NSW unless stated otherwise). | The same formulation is in the new s61HI(4). |
Consent is an ongoing process. A person can change their mind and withdraw their consent at anytime. | This was already true for sexual intercourse which was defined as including its continuation. | The new law spells this out expressly and extends it to sexual acts s61HI(2)and(3). |
A person can’t consent if they are so intoxicated they can't choose or refuse to participate. | Old s61HE(8)(a) said substantial intoxication may establish non-consent. | New s61HJ(1)(c) states that incapacitating intoxication negates consent (this seems narrower than the old law). |
Consent can only be given freely and voluntarily. | Old s61HE(2) said that. | The new s61HI(1) says this but it specifies that the agreement must be at the time of the sexual activity. |
If you force or coerce your partner into sex, its not consensual. | Old s61HE(5)(c) covered force and old s61HE(8)(b) said coercion may establish non-consent. | New s61HJ(1)(e)(f) covers both and specifies that it can occur at any time. |
Consent must be present for every sexual act. If someone consents to one sexual act, it doesn't mean that they've consentend to others. | Old s61HE(2) said this implicitly. | New s61HI(5) makes it explicit (and adds an example about stealthing). |
A person can’t consent if they are asleep or unconscious. | Old s61HE(5)(b) said that although framed in terms of lack of opportunity to consent. There is a question as to whether this may have allowed for prior consent. | The new s 61HJ(1)(d) says the same (but clearly bars prior consent). |
Key message
Contact our lawyers if you require advice if if you have been charged with sexual offence. As outlined there are significant changes in affirmative consent however the underlying framework remains the same. It is important to understand the operation of the laws before 1 June 2022, what’s changed since 1 June 2022 and if you are charged, when the alleged offense occurred.
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