Affirmative Consent (NSW)

In 2022, New South Wales became the first Australian state to change its laws around sexual consent to an affirmative consent model. This means that in order for a sexual encounter to be viewed by a court as consensual, all participants must now have done or said something to communicate that they were consenting to the act. This page outlines the new model of consent that now applies in New South Wales.

What is consent?

The majority of sexual offences against adults in New South Wales are based on a lack of consent by the victim. This means that an accused has a full defence if they can show that the victim did in fact consent to the act. If the victim did not consent to a sexual act that occurred, an offence has been committed.

Under section 61HI of the Crimes Act 1900, a person consents to sexual activity if they freely and voluntarily agree. A person may withdraw their consent through words or conduct at any time. A person who consents to one sexual activity is not to be taken to consent to another activity.

A person is not to be taken to consent to a sexual activity solely based on the fact they have consented to other sexual activities on other occasions.

Stealthing

Under the new definition of consent in New South Wales, the practice often referred to as ‘stealthing’ is now prohibited. Stealthing occurs when a person removes or tampers with a condom during sex without the consent of their sexual partner.

Under the new laws, a person is not to be taken to have consented to a sexual activity if they consented based on an intentional misrepresentation about the use of a condom. This means that instances of proven stealthing may result in findings of guilty for sexual assault.

When does a person not consent?

Under section 61HJ of the Crimes Act 1900, a person is not to be found to have consented to sexual activity if:

• they do not say or do anything to communicate consent
• they do not have the capacity to consent
• they are so affected by alcohol or drugs that they cannot consent
• they are unconscious or asleep
• they participate because of force, fear of force or fear of serious harm
• they participate because of coercion, blackmail or intimidation
• they participate because they are unlawfully detained
• they participate because they are overborne by a relationship of trust, authority or dependence
• they participate because they are mistaken about the nature or purpose of the activity
• they participate because they are mistaken about the identity of the other person or mistakenly believe that they are married to the other person’
• they participate because of a fraudulent inducement.

When has an offence occurred?

Under section 61HK of the Crimes Act 1900, a person will be found guilty of a sexual offence involving lack of consent if:

• the alleged act occurred and they knew that the victim was not consenting
• the alleged act occurred and they were reckless as to whether the victim was consenting
• the alleged act occurred and they believed that the victim was consenting but this belief was not reasonable.

An accused person will not be found to have had a reasonable belief that the victim was consenting if they did not do or say anything to find out whether the victim was consenting.

Affirmative consent

An affirmative consent model of sexual consent means that consent to sexual acts must be actively conveyed through words or actions and cannot be presumed on the basis of lack of resistance or protest.

The amendment of New South Wales’s laws around consent follows years of pressure by victim-survivors and victim advocates for the laws on consent to change to better protect victims and to better reflect community expectations.

Affirmative consent in other jurisdictions

Several other Australian jurisdictions have now enacted affirmative consent laws. The ACT and Victoria have put in place affirmative consent models of consent and Queensland has announced its intention to do the same.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.