Affirmative Sexual Consent Laws Are Now In Effect In NSW

Affirmative sexual consent laws are now in effect in NSW – what does that mean? And how is it different to the law of consent in Western Australia?

Consent as it relates to sexual offences

The issue of consent, or more accurately, the absence of consent is a primary element that the prosecution must prove to make out the offence of sexual assault in New South Wales (NSW) and the equivalent offence of sexual penetration without consent in Western Australia (WA).

Having a good understanding of what consent is ensures that sexual relationships are healthy and respectful.

It is also important to know what consent is because sexual activity that occurs without the consent of all participants is illegal and a serious criminal offence. In WA, a person found guilty of sexual penetration without consent will be subject to a maximum penalty of 14 years imprisonment. The maximum penalty increases to 20 years in circumstances of aggravation.

Further, understanding the legal standard of consent will assist a person subject to false allegations of sexual assault, which can have real and damaging consequences for the person charged.

Affirmative Consent in NSW

NSW’s new affirmative consent laws came into effect earlier this month. The move by NSW was in a large part triggered by the acquittal of Luke Lazarus in 2017 and ABC Four Corner’s airing of ‘I am That Girl’ in 2018.

The new laws emphasise that parties to sexual activity must openly communicate their free and voluntary consent at the time of the act.

In essence, this means that participants engaging in sexual activity (such as kissing, touching, oral sex and penetrative sex) must provide a clear ‘yes’, by way of words or a positive physical gesture. Without this clear communication, the sexual activity may be deemed non-consensual and a criminal offence.

If someone is affected by drugs or alcohol, they may not be able to provide clear affirmative consent. The new laws make it the responsibility of everyone participating in the sexual activity to ensure mutual agreement.

Notably, ‘agreement’ does not just occur prior to or at the start of sexual activity. It requires open and clear communication of consent between all parties throughout the whole duration of sexual activity to prevent misunderstandings.

By way of explanation, someone who agrees to oral sex does not necessarily mean they are also agreeing to penetrative sex. Or, a person agreeing to kissing and touching, might not want to proceed further to another type of sexual activity. Or, a person that agrees at a time prior to sexual activity, does not automatically mean they are still agreeing to proceed with sexual activity once the time actually comes. These examples highlight how agreement to all sexual acts must be sought and established between parties.

Consent in Western Australia

Prior to the recent changes in NSW, the standard of sexual consent was virtually the same in WA and NSW.

Currently, under WA law, sexual consent means it is ‘freely and voluntarily given’ and must be present prior to sexual activity. There is no legal requirement that consent be positively expressed (for example, by verbal confirmation).

The law also provides that where consent is obtained by force, threat, intimidation, deceit or any fraudulent means, it is not freely or voluntarily given.

Further, the laws have a provision addressing the ‘freeze’ response (a cognitive response where a person in the face of sexual assault does not resist due to fear) – any failure of a person to offer physical resistance does not automatically amount to consent.

A person cannot be assumed to have provided consent if they were asleep or unconscious or affected by alcohol or another drug.  A person is not taken to have consented in any situation where the person is mistaken about the identity of the other person involved.

A person 16 years of age or older is capable of providing sexual consent.

Honest & Reasonable but Mistaken Belief of Consent

In WA and NSW, an accused person can be acquitted of a sexual offence charge if they had an honest and reasonable but mistaken belief that the victim consented.

In WA, the defence can only be raised once the prosecution has proven the complainant was not consenting and there is sufficient evidence open to the possibility that the accused could have formed an honest and reasonable but mistaken belief of consent. The evidence is considered by the jury and may include, for example, there was no communication of non-consent between parties before sexual activity. Once the defence is raised, the prosecution must prove beyond reasonable doubt that the accused did not form a honest and reasonable but mistaken belief of consent.

This is an important point of difference between the law in WA and NSW. Under NSW’s new affirmative consent law, an accused will not be considered to have formed reasonable belief of consent where they did not take any active steps to ask and make sure consent was given to them.

Could WA follow in NSW’s footsteps?

In summary, NSW’s affirmative consent law is different from WA’s legal standard of consent in to the extent that consent must be positively communicated and consent must be given and ascertained for the entire duration of sexual activity.

The move by NSW to legislate affirmative consent has inspired the WA government to direct the WA Law Reform Commission to examine whether affirmative consent should be reflected in the Criminal Code 1913 (WA) as part of its wider inquiry into sexual offence laws in WA. This may mean WA could potentially follow in NSW footsteps in the not so distant future.

WA is not alone in this. Victoria and the Australian Capital Territory are also considering introducing affirmative consent laws. Affirmative sexual consent laws are not just local either – they exist particularly in the US including New York and California.

Affirmative consent laws are intended to strengthen existing consent laws by making non-consensual sex easier to prove in court. In particular, it would appear that the rationale behind these laws is to shift the focus at trial on the accused to demonstrate how they were given or ascertained consent from the complainant, rather than focusing on whether the complainant physically or verbally resisted the accused to show their non-consent.

There has been some concern that affirmative consent laws will lead to significant injustice for people accused of sexual offences.  However, it is important to remember that these laws are not necessarily designed for people in happy, loving relationships, already having regular consensual sex. Although sexual assault can occur in existing long-term relationships, these typically (not always) occur within the context of domestic and family violence, and are also crimes.

The new laws may possibly cause some awkward moments between people who are just getting to know each other, or who are in the early stages of dating . However, having clear and open lines of communication about engaging in sexual acts is not a negative thing. It ensures sexual relationships are built on respect and lines are not crossed.

This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.

PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.