Clearer boundaries for consensual sex have been enshrined in law after the NSW Parliament passed historic consent reforms to ensure more effective prosecutions of sexual offences.
The affirmative consent reforms mark a major overhaul in the state’s laws, which will require a person to show they took active steps to find out if a person consented to sex before they can rely in court on a mistaken but reasonable belief in consent.
Under the legislation, the NSW Crimes Act will be changed to specify consent to sexual activity must be communicated by words or actions, not simply assumed.
(a) a person does not consent to sexual activity unless they said or did something to communicate consent; and
(b) an accused person’s belief in consent will not be reasonable in the circumstances unless they said or did something to ascertain consent.
They will also retain the current meaning of consent as a free and voluntary agreement, while adding that it must be present when sex occurs. They will also affirm a person’s right to withdraw consent at any point; make clear that if someone consents to one sexual act, it doesn’t mean they’ve consented to other sexual acts; clarify the definitions of “sexual intercourse”, “sexual touching” and “sexual act”; and clarify that a defendant cannot rely on self-induced intoxication to show they were mistaken about consent.
A sexual offence occurs when someone does not consent to a sexual act, including but not limited to, sexual intercourse or sexual touching.
Consent in relation to sexual offences is governed by section 61HE of the Crimes Act 1900
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and applies to the offences of ‘sexual act’, ‘sexual touching’ and ‘sexual assault’ (and their aggravated versions).
Sexual Consent can be withdrawn at any time.
There are some situations when a person cannot consent, including if they are:
so heavily affected by drugs and alcohol that they are incapable of consenting
forced, manipulated, scared, pressured or coerced into giving consent
incapable of consenting because of, for example, a cognitive impairment
under the age of 16.
In criminal proceedings for sexual offences, the prosecution must prove beyond reasonable doubt that the complainant did not consent to the sexual activity and that the accused person knew that there was no consent. An accused person is taken to know there was no consent if:
they had actual knowledge there was no consent
they were reckless as to the issue of consent
the person had no reasonable grounds for believing the person consented to the sexual activity.
Criminal Lawyers Sydney George Sten & Co have been practicing exclusively in crime for over 50 years. The Criminal Defence Lawyers at George Sten have a deep knowledge and understanding of the law and the court system and can use this to your advantage. Our Sydney Criminal Lawyers can be contacted 24 hours / 7 days a week for urgent legal advice. 02 9261 8640