In New South Wales, laws on consent now reflect a model of ‘affirmative consent’. 

The law on consent is crucial to the offences of sexual assault, sexual touching, and where a sexual act is committed, among others, and is contained within the Crimes Act 1900 (NSW).

Changes to consent laws were implemented on 1 June 2022, which ultimately aimed to clarify prior provisions, to assert that consent is a ‘free and voluntary agreement’ that should not be presumed.

What is consent?

An affirmative consent model essentially means that a person must do or say something to indicate that they consent before sexual activity. 

Generally, a person consents to sexual activity if, at the time of the sexual activity, they freely and voluntarily agree to it.

It is important to note that a person may, by words or conduct, withdraw consent to sexual activity at any time.

A person who does not offer physical or verbal resistance to a sexual activity is not to be taken to consent, by reason only of that fact.

Furthermore, just because a person consents to a particular sexual activity does not mean they consent to any other sexual activity, due to that. 

An example provided includes that a person who consents to a sexual activity using a condom is not, by reason only of that fact, to be taken to consent to it without using a condom.

It is also made clear that just because a person consents to a sexual activity with a person on one occasion, that this does not mean that the person consents to a sexual activity with that person on another occasion, or another person on that or another occasion.

What are circumstances in which there are no consent?

The Act outlines various circumstances in which there are no consent, including where the person:

• does not say or do anything to communicate consent,
• does not have the capacity to consent to the sexual activity (i.e., where they are under 16-years old or have a cognitive incapacity), 
• is so affected by alcohol or another drug and is thus incapable of consenting, or 
• is unconscious or asleep.

There will also be no consent where the person participates in the sexual activity because:

• the person or another person is unlawfully detained,
• the person is coerced by an abuse of a relationship of authority, trust, or dependence,
• the person is mistaken about the nature of the sexual activity, or the purpose of the sexual activity (i.e., where it is purported to be for health, hygienic or cosmetic purposes), or
• the person is mistaken about the identity of the other person, or whether the person is married to the other person.

It also provides that there is no consent where the person participates in the sexual activity due to force, or fear of force or serious harm of any kind to the person, another person, an animal, or property, regardless of when the force or the conduct giving rise to the fear occurs, or whether it occurs as a single instance or as part of an ongoing pattern. 

There will also be no consent where the person participates in the sexual activity because of coercion, blackmail, intimidation, or a fraudulent inducement.

Notably, fraudulent inducement will not be considered if it is purely based on the person mispresenting their income, wealth, or feelings. 

This list is not conclusive and is stated to not limit the grounds on which it may be established that a person does not consent.

What knowledge is required?

The Court will deem that a person knew that another did not consent to a sexual activity if they ‘actually knew’ or were ‘reckless’ as to whether the other person consented to the sexual activity. 

A person is reckless where they realise the possibility that the other person was not consenting but go ahead regardless of whether the other person was consenting or not.

It is also reckless where the defendant failed to consider whether the other person was consenting, and went ahead, even though the risk that the other person was not consenting would have been obvious. 

Furthermore, a person will be taken to know that another does not consent if any belief that they had, or may have, that the other person consented is not reasonable in the circumstances.

An example of an ‘unreasonable’ belief includes where the defendant did not, within a reasonable time before or at the time, say or do anything to determine whether the other person consents. 

However, this will not be applicable where the accused had a cognitive or mental health impairment at the time, which was a substantial cause of them not saying or doing anything. 

The duty to prove this impairment is on the defence, on the balance of probabilities.

The Court will consider all the circumstances of the matter including what the defendant said or did, if anything. It is important to note that the Court will be unable to consider any self-induced intoxication of the defendant.

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