What is sexual consent?
Under the Crimes Act 1900, sexual consent is defined as a person freely and voluntarily agreeing to engage in sexual activity at the time of the act. Sexual activity, in this context, includes sexual intercourse, sexual touching, or other sexual acts as specified by the legislation.
Legislative Reforms
On 1 June 2022, the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 introduced significant changes to New South Wales’ sexual consent laws. These reforms added Part 3, Division 10, subdivision 1A to the Crimes Act 1900.
These reforms emphasise that affirmative consent requires active participation and ongoing communication between all parties involved in sexual activity. A key reform is the adoption of affirmative, communicative consent language. The new laws make it clear that consent must be expressed through words or actions, and individuals are responsible for taking active steps to ensure the other person is consenting. In explaining how consent may be freely and voluntarily conveyed, the Attorney General noted that this could include “reciprocating body language or affirming remarks throughout a sexual encounter” (Second Reading Speech, Legislative Assembly, Debates, 20 October 2021, p. 7507).
As a result, consent can no longer be inferred from a lack of physical or verbal resistance to sexual activity. The case of R v Lazarus [2017] highlighted the need for this shift and was a key motivator for the Attorney General in passing the new affirmative consent laws.
These legislative amendments place the responsibility on each person to obtain positive confirmation of consent from the other party or parties, through either words or actions, to ensure they are willing participants. If a defendant seeks to argue at trial that consent was given, the onus is on the defendant to demonstrate that the complainant gave affirmative consent through their words or actions.
Key Takeaways from the Changes to Consent Legislation
- Consent is a free and voluntary agreement that should not be assumed based on a lack of verbal or physical resistance. Instead, both parties must say or do something to affirm their consent to sexual activity.
- Consent cannot be presumed based on prior encounters; consent for one occasion does not imply consent for future occasions.
- Consent is invalid if obtained through misleading identity or fraudulent inducement. Fraudulent inducement does not include misrepresentations about a person’s feelings, wealth, income, or the use of “pick-up lines” or minor deceptions.
- Consent is not present if participation is due to coercion, blackmail, or abuse.
- Consent is absent if a person is asleep, unconscious, or impaired by alcohol or other drugs.
If you or a loved one has been charged with a sexual offence, please reach out to our team for a free consultation.