While the laws that deal with sexual assault and consent in New South Wales have always been complex, it is important to have a solid grasp of how they work and what has changed.
The ‘affirmative consent’ legislation alters the way sexual assault offences and consent are handled under the Crimes Act 1900 (NSW) and Criminal Procedure Act 1986 (NSW). These changes came into effect on 1 June 2022.
This blog focuses on the changes made to the Crimes Act 1900 (NSW). See the NSW Government Website for the most up to date version of New South Wales Criminal Law.
What were the changes made to the consent laws?
The NSW Government has introduced a new model of consent applying to sexual assault offences.* This model places an onus on the parties to a sexual act to ensure that all parties are consenting by conduct and/or words.
These changes primarily recognise;
- everyone’s right to choose whether to participate in a sexual activity,
- that consent to such activity is not presumed and,
- that consent requires mutual, ongoing communication between the involved individuals within a free and voluntary agreement
These objectives reflect the key differences between the current and former legislation regarding consent in respect of sexual assault offences.
*Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW)
A person consenting to a sexual act must say or do something that conveys this consent
Under section 61HI(1), a person consents to a sexual activity provided they voluntarily and freely agree to the sexual activity. The new consent legislation is provided under sections 61HI-HK of the Crimes Act 1900 (NSW).
A person consenting to sexual conduct must say or do something to show that they are consenting. The accused must have a reasonable belief in this consent to be considered not guilty of sexual assault. If there was nothing said or done do ascertain consent or the accused was reckless as to the possibility of non-consent, this belief will be held to be unreasonable.
This consent can be withdrawn at any time by words or conduct and a lack of physical or verbal resistance to a sexual activity is not taken to be consent. This consent is not taken to apply to all sexual acts or other occasions involving sexual activity with that person or other people.
Circumstances where there is no consent
A person does not consent where; no words or actions indicate this consent, they do not have the capacity to consent or is so affected by drugs or alcohol that they are incapable of consent. It goes without saying that a person who is asleep cannot consent to a sexual act.
Further circumstances where a person is not taken to have consented to a sexual act are listed under section 61HJ of the Crimes Act 1900 (NSW).
Consent relating to sexual touching offences
It must be understood that this new consent model applies to not only sexual assault but also sexual touching offences.
The provisions under section 61HB provide that sexual touching means the touching of another person with any part of the body or with anything else. This includes anything which is worn by the person touched.
Why were these changes made?
These changes were to redress the widely unpopular acquittal of the accused in R v Lazarus [2017] NSWCCA 279. In this case, the accused, Luke Lazarus, was alleged to have sexually assaulted the complainant, Saxon Mullins, in an alleyway outside a Sydney nightclub without consent on 12 May 2013.
In the most recent judgment decided on 27 November 2017, the contentious issue for the Court was whether Lazarus knew that Mullins was not consenting as well as whether the jury was indeed misdirected as to the question of his knowledge of her consent.
It was initially held by the New South Wales Court of Criminal Appeal on 19 February 2016 that Mullins did not indicate by words such as “stop” or “no” or take physical action to remove herself from the intercourse to show her non-consent beyond reasonable doubt. These circumstances were decided to amount to reasonable grounds for Lazarus to form the belief that Mullins was consenting, even though both had been heavily drinking.
The Court found that the previous decision acquitting Lazarus was correct and agreed that the jury was misdirected. Accordingly, the appeal was dismissed.
This decision led to the NSW Attorney General’s request put to the NSW Law Reform Commission to review the definition of sexual intercourse under section 61HA of the Crimes Act 1900 (NSW). This request was made amidst concerns regarding the need for victim protection in sexual assault matters.
So, what does this mean for my partner and I?
It is very important for those who engage in sexual activity to ensure that there is ongoing, mutual communication regarding consent. This consent needs to be continually asserted by words or conduct particularly when the nature or circumstances of the sexual act change.
Consent involves a voluntary and free agreement which should not be presumed, make sure that this is clear between you and your partner before and during sexual activity. It is important to recognise that just because someone consents to a form of sexual activity on one occasion, they should not be taken to consent to it on future occasion by default.
This article is not a substitute for proper legal advice and is only to be read as a guide providing general information. For more information, contact Brady and Associates Lawyers on (02) 9545 3273.
