Consent and Sexual Offences

In New South Wales, many sexual offences (but not all) require an absence of consent as something that the prosecution need to prove in order for someone to be found guilty of an offence.  NSW has now adopted “affirmative” consent laws, but the law at the time the offence allegedly occurred will apply to the case – so depending on the allegations, a different model of consent might apply.

The Definition of 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.

There are two parts to consent that need to be considered – whether a person was in fact consenting, and whether the other person had knowledge of that fact.

When Does A Person Not Consent?

Section 61HJ of the Crimes Act 1900 (NSW), outlines examples of where consent is not given. This includes:

• 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.

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.

Knowledge of Consent

Pursuant to Section 61HK of the Crimes Act 1900 (NSW), the prosecution are also required to prove that there was knowledge of a lack of consent.

Practically speaking, situations can commonly arise where someone might have been genuinely not consenting, but if the other person didn’t know that, they might still be “not guilty” of the offence.

Knowledge of consent can be established in three different ways

• They knew the other person was not consenting (ie, someone said “no” or “stop”
    and you continued anyway);
• They were reckless as to whether the victim was consenting (ie, they did nothing to actually check if consent was being given and just assumed)
• They believed the other person was consenting, but this belief of consent was not reasonable.

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. The prosecution are required to prove that you have knowledge of lack of consent – so if you thought the other person was consenting, this might be a defence. 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.