Review of Sexual Consent Laws (NSW)

In May 2018, the New South Wales government asked the NSW Law Reform Commission to conduct a review of the state’s sexual consent laws. The Law Reform Commission conducted a comprehensive review with a particular focus on issues relating to consent and whether an accused believed that there was consent, whether that belief was reasonable, and how to recognise the common “freeze” response (i.e. where a person freezes in fear and cannot communicate that they do not consent).

As a result, a number of changes were made. The most fundamental change to the laws is that now, an accused’s belief that the complainant was consenting will not be sufficient to amount to a defence where the accused did not say or do anything to confirm whether the other person consented (within a reasonable time before or at the time of the sexual activity) as this is not considered reasonable in the circumstances. In other words, a person may be guilty of sexual assault if they simply presumed the other person was consenting (where it was not reasonable in the circumstances) but did not ask them or do anything to confirm that they were in fact consenting.

The recommendations

The recommendations following the NSW Law Reform Commission’s review focused on:

• Clarifying consent provisions including amending the law to make it clear that consent should not be presumed and that consent involves ongoing and mutual communication;
• Strengthening the laws to provide that, if someone consents to one sexual act, it doesn’t mean they’ve consented to other sexual acts;
• Ensuring fairer and more effective prosecutions of sexual offences;
• Addressing misconceptions about consent in trial proceedings;
• Improving victim experiences of the justice system;
• Improving juror’s understanding of the complexities of sexual offending and reporting through the introduction of new jury directions.

In total, 44 recommendations were made, and the NSW government supported all 44 recommendations.

On 20 October 2021, the NSW Government introduced a bill known as the Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021.

The key changes in that bill include:

• A person does not consent to sexual activity unless they said or did something to communicate consent; and
• An accused person’s belief in consent is not reasonable in the circumstances unless they said or did something to ascertain consent.

What are the existing sexual consent laws?

This is a significant change from the current laws regarding consent which essentially state that it is an offence to have sexual intercourse with another person, sexually touch another person or engage in a sexual act towards another person if any of those acts occurs:

• without the other person’s consent; and
• the accused knows that the other person does not consent. An accused “knows” that another person does not consent if they have actual knowledge, are reckless or have “no reasonable grounds for believing” the other person consents.

How to establish sexual consent moving forward

It is important to remember a number of things when it comes to engaging in sexual intercourse.

• Consent must be freely and voluntarily given.
• A person cannot consent in certain circumstances, for example, if they are under the age of 16, if they are unconscious or asleep or if they are substantially intoxicated by drugs and/or alcohol.
• Consent can be communicated by words or actions—including, for example, reciprocating body language or affirming remarks throughout a sexual encounter.
• Consent may be regarded as a “continuum” in that a person can consent to and maintain consent to a range of sexual activity, including consent from the outset to multiple forms of sexual activity.
• A common-sense approach—rather than an unduly narrow approach—should be taken as to what constitutes a different “sexual activity”. By way of example, consent to oral sex is not consent to anal sex. These are different forms of sexual activity. On the other hand, at one extreme, if there has been consensual sexual touching of a person’s toe, that will typically not be a requirement for fresh consent to touch another toe.
• An accused person may be guilty of sexual assault in circumstances where they took no steps to confirm the other person was consenting and they had no reasonable basis to believe they were consenting.

Sex-based offences are extremely serious. Because of the nature of sex offences, there is often a lot at stake for a person facing these sorts of charges. Their career, ability to hold a working with children check, access to their children and freedom may be in jeopardy particularly as a term of imprisonment is often imposed where a person is found guilty of such an offence.

Armstrong Legal’s New South Wales Criminal Law team includes a number of solicitors who are experienced in representing clients charged with sex offences including sexual assault, sexual touching, historic sex offences and other sex-based offending. For more information about these lawyers, please contact us on 1300 038 223.

For more information, please read:

• The Facts SheetThe Media Release on “Common sense consent reforms closer to becoming NSW Law”
• The CRIMES LEGISLATION AMENDMENT (SEXUAL CONSENT REFORMS) BILL 2021

The reforms are expected to become law in mid-2022.

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