New affirmative consent laws in NSW
New affirmative consent laws in NSW
Consent is a key element in sexual assault charges and has been the subject of significant legal and social debate for years. The NSW Parliament announced back in November 2021, changes to sexual consent law and these changes came into effect on 1 June 2022 with the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW).
The law prior to 1 June 2022
Prior to the changes, for a charge of sexual assault without consent, the prosecution had to prove:
1. That the accused person had sexual intercourse with the complainant
2. Without the complainant’s consent, and
3. Knowing or reckless to the fact that the complainant did not consent.
These elements still apply to matters that were commenced prior to 1 June 2022 and for those matters, there is no onus on the accused person to prove that the complainant consented, rather it is for the prosecution to prove beyond reasonable doubt that the complainant did not consent.
The changes in the legislation now mean that a person must actively do something to ascertain consent to specific sexual activity.
What is affirmative consent?
In short, affirmative consent requires a person to actively seek out another person’s consent through actions or words before or at the time of the sexual activity, whether it be penetrative sex, oral sex, kissing or touching.
Consent can no longer be presumed, that is, silence or a lack of resistance cannot be considered consent. This recognises that people may respond differently to non-consensual sexual activity such as freezing or not saying or doing anything.
Knowledge
While the prosecution still must prove beyond reasonable doubt that the accused person knew that the complainant did not consent, that knowledge will be taken to exist when:
The accused person actually knows the other person does not consent, or
The accused person is reckless as to whether the other person consents, or
Any belief the accused person has or may have that the other person consents is not reasonable in the circumstances. This belief will not be 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 person consented.
In order for a jury to determine whether the accused person’s belief was reasonable, they must consider all of the circumstances of the case, including anything the accused person said or did and must not consider any self-induced intoxication of the accused.
It remains to be seen what action will amount to reasonable in the circumstances.
Additional reforms
The new laws describe consent as an ongoing process of communication, stating that:
A person can change their mind and withdraw their consent at any time
Consent requires ongoing mutual communication
Consent must be given for every sexual act, that is, if consent is given for one act, it does not mean they’ve consented to others, for instance, consent to oral sex is not consent to anal sex, and
Consent cannot be presumed, for instance, a person who consents to a sexual activity with a person on one occasion cannot be presumed to consent to a sexual activity with that person on another occasion.
The reforms reinforce a person’s capacity to give consent generally insofar as:
A person cannot consent if they’re so intoxicated that they can’t choose or refuse to participate and
A person cannot consent if they’re asleep or unconscious.
The legislation also expanded the list of circumstances where consent is not freely given. For the full list, see s 61HJ of the Crimes Act 1900 (NSW). This list is non-exhaustive, meaning that there will be other circumstances not listed where consent cannot be given.
Key circumstances are when a person:
Does not say or do anything to communicate consent
Does not have the capacity to consent
Participates because of force, fear of force or fear of serious harm of any kind to the person, another person, an animal or property
Participates in the sexual activity because they are overborne by the abuse of a relationship of authority, trust or dependence, or
Participates because they are mistaken about the nature of the sexual activity.
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