The complexity of the definition of consent in sexual assault cases has been an ongoing discussion within communities and the legal system.  On 1 June 2022, the NSW Parliament established changes to the definition of ‘consent’ via the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021, introducing the new ‘affirmative’ consent laws.

What is the definition of consent?  

‘A person consents to a sexual activity if, at the time of the sexual activity, the person freely and voluntarily agrees to the sexual activity’[1]

A significant amendment is that sexual consent is now defined as a ‘free and voluntary’ agreement ‘at the time of the sexual act’.  The implicit wording of ‘at the time of the sexual act,’ is vital.  It requires consent at the time and not earlier.  Consent cannot be presumed at any stage.

Implementation of affirmative consent

The new affirmative consent law recognises that sexual consent involves ongoing and mutual communication.  A strict onus is being placed on a person to obtain positive confirmation by words and/or actions by the other person.  In other terms, the absence of rejection is not consent.  This is intended to recognise that some people may be unable to express non-consent and freeze up due to fear or shock.

A mistaken belief of consent being given has long been grounds in defending a sexual assault charge.  A person charged with sexual assault must now demonstrate not only that they had a reasonable belief that consent had been given, but that they had taken steps to ascertain that consent was being given.

Additional reforms

The legislation provides a non-exhaustive list of circumstances where consent is not freely given.  Consent is not given in circumstances where:

  • A person does not say or do anything to consent;
  • A person does not have the capacity to consent;
  • A person participates due to force or fear of force or harm to the person, another person, an animal or property;
  • A person participates via an abuse of authority, trust, or dependence; or
  • A person participates due to coercion, blackmail, or intimidation

If you or a loved one is charged with a sexual offence, you can seek legal advice on your rights from our Criminal Law team by contacting us on 9525 8688. We can also assist with family law, property law and commercial law matters.

[1] Section 61HI(1) of the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021.