Consent (NSW)

In New South Wales, in order for a sexual instance 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. 

What is Consent in NSW?

Pursuant to Section 61HI of the Crimes Act 1900 (NSW), a person consents to sexual activity if they freely and voluntarily agree to the act. A person is able to withdraw their consent through words or actions, at any time during the sexual activity. A person who consents to one sexual activity is not to be automatically assumed to consent to another sexual activity.

Just because a person has consented to a sexual activity once, does not mean they automatically consent to the same sexual activity on another occasion.

Stealthing

The practice of ‘Stealthing’ is now prohibited. Stealthing occurs when a person removes or tampers with a condom during sex, without the consent of the other person. 

A person is not to be taken to have consented to a sexual activity if they consented based on an intentional misrepresentation of a condom. This means, if someone consented to participating in sexual intercourse on the grounds that a condom was used, but the condom was then taken off without their knowledge, consent is no longer present, unless the person consents to the change of condom usage. 

The following acts might constitute a sexual offence which breaches Consent in NSW:

• You both agree to engage in sexual intercourse, then during the sexual act, you take off the condom without telling the other person.
• You begin to sexually touch another person without asking for their consent.
• You have sexual intercourse with someone who is under the influence of illicit drugs and alcohol.

When Does a Person Not Consent?

Pursuant to Section 61HJ of the Crimes Act 1900 (NSW), a person is deemed to not have given consent to any 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.

Knowledge of Consent

Lack of consent is not all that is required for a person to be found guilty. Knowledge of lack of consent is also required. 

Pursuant to Section 61HK of the Crimes Act 1900 (NSW), a person will be found guilty of a sexual offence involving the absence of consent if:

• The alleged sexual act occurred, and you knew the other person was not consenting
• The alleged sexual act occurred, and you were reckless as to whether the victim was consenting
• You believed the other person was consenting, but this belief of consent was not reasonable.

Affirmative Consent

Affirmative consent means that consent to sexual activity must be explicitly and freely conveyed through words or actions and cannot be assumed on the basis that there was a lack of resistance and/or protest.

Common Questions about Consent in NSW

What if I truly believed the other person wanted to have sex with me?

It is important to always obtain explicit consent from the other person. If you have found yourself facing sexual charges surrounding the absence of consent, but you believe you obtained consent, reach out to Armstrong Legal and we can assist.

What if the person under the age of 16 consented to the sexual act with me?

A person under the age of 16 years old is incapable of providing legal consent to any sexual acts. Consent is not a defence in this circumstance.

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