Consent Laws in New South Wales: A Legal Overview

Consent is central to sexual offence law in New South Wales. The governing framework sits within the Crimes Act 1900 (NSW) and was materially reshaped in 2022 with the introduction of an affirmative consent model.

This article provides a legal overview of consent law in NSW and a table of offences with maximum penalties.

The Legal Definition of Consent

In New South Wales, the legal definition of consent is provided by s 61HI of the Crimes Act 1900:

a person consents to a sexual activity if, at the time of the sexual activity, the person freely and voluntarily agrees to the sexual activity.

On the face of it this definition is seemingly simple, but it operates within a detailed statutory framework which requires consent to be communicated by words or by actions and requires a person to take active steps to ascertain consent.

This forms an ‘affirmative consent’ model shifting from “no means no” to “yes must be communicated”.

Age of Consent in NSW

The age of consent is 16 years, and it is important to understand that regardless of what the person says or does, sexual activity is unlawful with a person under the age of 16. A defence of similar age may be available where the age difference is no more than two years, and the person is over 14 years.

Limitations on Consent

The law not only provides a definition of consent, but also for the scope of consent which, in short, is ongoing, act-specific and situation-specific.

A person may, by words or conduct, withdraw consent at any time. If consent is withdrawn, the continuing act is unlawful from that point forward. Similarly, a person who agrees to one sexual act is not, by reason of that fact alone, taken to consent to any other sexual activity.

It is worthwhile to reiterate this. Consent is act specific. Consent is situation specific.

Prior consent or past relationships are irrelevant and agreeing to one act does not imply agreement to another. This also includes circumstances in which a person has agreed to sexual activity in a particular way, for example, using a condom. If sexual activity occurs in a manner which is not agreed, such as without a condom, the act is unlawful.

When Consent Is Not Legally Recognised

The legislation now provides a lengthy (but not exhaustive) list of circumstances where consent is legally negated, irrespective of a person’s outward behaivour or willingness to participate. For example, if a person:

• lacks capacity whether by cognitive impairment or disability;
• is unconscious or asleep;
• is so affected by alcohol or drugs as to be incapable of consent;
• is subject to force, fear of force, blackmail or intimidation.

These are relatively straight forward examples within the provision though it is worthwhile noting that some are considerably more complex and may expose the intellectually disadvantaged (or immature) to serious criminal liability.

Importantly, the law does not purport limit the grounds on which it may be established that a person does not consent to sexual activity. This is arguably encroaching on a fundamental aspect of the rule of law which entitles a person to be able to find and ascertain their legal rights and obligations.

Similarly, consent is negated in circumstances of ‘coercion’ whether in a single instance or as part of an ongoing pattern. ‘Coercion’ is a new concept in law and the scope of which is at this point, not fully comprehensible.

By further example, there is no consent where a person is ‘overborne by the abuse of a relationship of authority, trust or dependence.’ This is a question of fact and law which may be assessed with relative ease, with the benefit of hindsight, taking a step back and looking at the circumstances and relationship globally.

Though it is not difficult to envisaged circumstances in which this can only be known by undertaking a complex assessment of a person’s state of mind (among other things) after the fact and not by a person who, at the time of the sexual act, lacks the emotional insight to recognise their own behaivour as abusive.

The final point we illustrate in this regard relates to negated consent because of ‘fraudulent inducement’. The provision is silent on what constitutes fraudulent inducement save to say what it is not. It is not a misrepresentation about a person’s income, wealth or feelings.

It is certainly an unenviable task for the legislature to reduce such complex human behaviour to a concise list of dos-and-don’t’s and this article is not intended to offer any criticism of the law. It is simply to acknowledge the range of circumstances in which a person can be liable for serious criminal liability notwithstanding a seemingly willing complainant.

Knowledge of Consent

For most sexual offences, the prosecution must prove not only absence of consent but also the accused’s knowledge or fault element. This is satisfied where the accused:

1. Knew there was no consent, or
2. Was reckless as to consent, or
3. Had no reasonable grounds for believing there was consent.

Under the affirmative consent model, failing to take steps to confirm consent will typically undermine any claim of reasonable belief.

For the purposes of determining an accused’s person knowledge of consent, or lack thereof, the trier of fact (judge or jury) must consider all of the circumstance of the case including what, if anything, the accused said or did, and must not consider any self-induced intoxication of the accused.

From a legal perspective, the reforms place greater scrutiny on reasonable belief claims, and a key issue is no longer whether consent existed, but whether the accused took reasonable steps to establish it.

Conclusion

Consent law in NSW has evolved and the legal test is no longer satisfied by the absence of refusal. At its core, the framework reflects sexual activity is lawful only where there is affirmative, ongoing, and freely given agreement.