What is the Definition of Sexual Consent in New South Wales?

The Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 came into effect on 1 June 2022 (NSW), repealing the definition of sexual consent contained in section 61HE of the Crimes Act 1900 (NSW) and inserting a new Subdivision 1A into Division 10 of the Act – a division which deals with sexual offences such as:

• Sexual assault, which is also known as sexual intercourse without consent,
• Sexual touching (known prior to December 2018 as indecent assault), and 
• Sexual act (known prior to December 2018 as act of indecency).

The new definition also applies to the aggravated versions of these offences.

The Law Reform Commission

The amendments come on the back of the New South Wales Law Reform Commission’s report entitled ‘Consent in relation to sexual offences’ of September 2020; a 273-page document examining the scope and application of, and potential issues with, then-existing laws relating to sexual consent, and making recommendations for change.

The changes adopt several of the Commission’s recommendations, most notably the repeal of section 61HE and insertion of Subdivision 1A, which contains the new sections 61HF to 61HK.

The stated objective

Section 61HF makes clear that the objective of the new subdivision is to recognise that:

(a) Everyone has a right to choose whether or not to participate in sexual activity,

(b) Consent to sexual activity is not to be presumed,

(c) Consensual sexual activity involves ongoing and mutual communication, decision-making and free and voluntary agreement between participants.

The offences to which the definition applies

Section 61HG states that the definition applies to the following offences:

• Sexual assault under section 61i of the Act, which carries a maximum penalty of 14 years in prison,
• Aggravated sexual assault under section 61J, which carries a maximum of 20 years,
• Aggravated sexual assault in company under section 61JA, which carries a maximum of life in prison,
• Sexual touching under section 61KC, which carries a maximum of 5 years,
• Aggravated sexual touching under section 61KD, which carries a maximum of 7 years,
• Sexual act under section 61KE, which carries a maximum of 18 months, and
• Aggravated sexual act under section 61KF, which carries a maximum of 3 years.

Perhaps it goes without saying that the definition does not apply to acts against those who are under the age of consent – which is generally 16 years in New South Wales (unless the complainant is under ‘special care’, in which case it is 18 years) – because a person of that age cannot give consent in any event.

The definition of sexual consent in New South Wales

Sections 61HH, 61HI, 61HJ and 61HK set out the meaning of sexual consent in our state.

Clarification

Section 61HH merely clarifies that ‘consent’ has the same meaning as the sections that follow, and ‘sexual activity’ means sexual intercourse, sexual touching and sexual act.

Consent generally

Section 61HI(1) sets out that a person consents to sexual activity if he or she “freely and voluntarily agrees” to the activity.

The subsections that follow attempt to put that broad and potentially ambiguous definition into some practical context, making clear that:

2. Consent can be withdrawn by words or conduct at any time, 
3. Sexual activity that occurs after the withdrawal of consent is deemed to be without consent,
4. Consent is not established merely because a person does not offer physical or verbal resistance,
5. Consent to one form of sexual activity is not taken as amounting to consent to another. In that regard, the Act expressly states that consent sexual activity with a condom does not amount to consent to such activity without one, and
6. Consent to sexual activity on one occasion is not taken as amounting to consent on another.

Circumstances where consent cannot exist

Section 61HJ(1) makes clear that sexual consent does not exist if a person:

1. Does not say or do anything to communicate consent (which is sometimes referred as the requirement to obtain affirmative consent),
2. Does not have the capacity to consent (due, for example, to a cognitive impairment that requires supervision or social habilitation in connection with daily life activities),
3. Is so affected by alcohol or another drug/s as to be incapable of consenting,
4. Is unconscious or asleep,
5. Participates because of force, fear of force or harm of any kind to him or her, another person, an animal or property, regardless of whether the feared force or conduct actually occurred, or was a single act or an ongoing pattern of conduct,
6. Participates because of coercion, blackmail or intimidation regardless of when it occurred or whether it was a single act or an ongoing pattern of conduct,
7. Participates because he or she, or another person, is unlawfully detained,
8. Participates because he or she is overborne by the abuse of a relationship of authority, trust or dependence,
9. Participates because of a mistaken belief about the nature or purpose of the sexual activity, including whether it is for health, hygienic or cosmetic purposes,
10. Participates because of a mistaken belief about the identity of the other person or that they are married,
11. Participates because of a fraudulent inducement, which is not a misrepresentation about the other person’s income, wealth or feelings.

The section expressly states that these grounds are not exhaustive.

Knowledge about consent

Section 61HK sets out the circumstances where a person is taken to know the person with whom they are engaging in sexual activity does not consent.

Subsection 61HK(1) stipulates that a person is taken to know the other person does not consent to the sexual activity if:

1. The person actually knows the other person does not consent,

2. The person is reckless as to whether the other person does not consent. 

In that regard, a person is ‘reckless’ if he or she realised at the time that consent may possibly be absent but went ahead with the sexual activity regardless; or

3. Any belief the person has that the other person consents is not reasonable in the circumstances.

In that regard, subsection 61HK(2) states that sexual activity is not reasonable if the person did not, within a reasonable time before or at the time of it, say or do anything to find out if the other person consents.

Subsection 61HK(3) provides that the requirement of reasonableness does not apply if the defendant shows that he or she had a cognitive impairment or mental health impairment at the time of the conduct, and the impairment was a substantial cause of him or her not saying or doing anything at the time,

Subsection 61HK(4) states that the onus rests on the defendant to prove, on the balance of probabilities, that the belief as to consent was reasonable.

The section forms part of the legal requirement to obtain affirmative consent.

Subsection 61HK(5) states that for the purpose of making a finding regarding consent, the ‘fact finder’ (in other words, the jury in a jury trial, the judge in a judge-alone trial or the magistrate in a Local Court hearing):

1. Must consider all of the circumstances of the case including what, if anything, the defendant said or did, but
2. Must not consider any self-induced intoxication of the defendant.

The upshot

The requirements for a person to obtain ‘affirmative consent’ and prove ‘reasonableness’ represent a radical reformulation of the way the law sees sexual consent in New South Wales. 

The ‘affirmative consent’ provision contained in sections 61HJ(1)(a) places a strict onus on a person to obtain positive confirmation by words and/or actions that the other person consents not only to sexual activity generally, but to the specific act intended to be engaged in.

It further requires that if there is to be a departure from the type of sexual activity for which affirmative consent is obtained, additional consent must be obtained by words and/or actions before any other form of sexual activity can lawfully occur – whether that be a specific type of sexual act, a specific type of sexual touching or a specific type of sexual intercourse.

In other words, consent cannot be presumed at any stage of sexual activity and specific consent must be obtained throughout any sexual episode whereby there is a progression from an act for which consent is obtained, to any other act – regardless of how natural the progression may be seen.

Any person who does not obtain such consent at every stage is considered by the law to be a sexual offender – a ‘rapist’ in the context of sexual intercourse for which positive consent is not obtained – it is precisely that clear and certain.

In addition to this, the ‘reasonableness’ requirement contained in sections 61HK(1)(c), (2) and (4) signals a seismic shift from the prosecution having to establish the absence of consent, to the defendant being burdened with the onus of proving that his or her honest and genuine belief regarding consent was also reasonable according to a fact-finder.

It thereby undermines the presumption of innocence – the fundamental criminal law principle that an accused person is considered to be innocent until and unless the prosecution is able to discharge its onus of proving his or her guilt beyond a reasonable doubt.

A defendant who is unable to discharge this onus will face a sexual conviction and the potentially catastrophic life consequences that go with it.

And while the Attorney-General of New South Wales may assert it is ‘common sense’ to require positive consent by words and/or actions for any and all sexual activity, many are not so certain regarding how realistic the requirement may be in practise; asking questions such as, is a written sexual consent contract required? If so, does it have to be amended during sexual activity? And, do spouses and other intimate partners have to obtain consent each time they engage in sexual activity that is customary to them? The legal answer to the last question is ‘yes’, by the way. 

Many believe the requirement goes too far and that, although the objective of protecting potential victims from sexual misconduct, the legislation goes too far and could lead to unjust outcomes, and even be abused by regretful and/or vindictive albeit ‘consenting’ intimate partners.

One thing is certain, the new definition makes it a lot easier for prosecutors to convict those against whom claims of sexual assault, sexual touching and sexual act are made.

Accused of a sexual offence?

If you or a loved-one has been accused of a sexual offence, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a conference with an experienced criminal defence lawyer with specialist knowledge of the laws, practices and procedures relating to these types of offences, including the defences that may be available, and who will provide accurate advice on the law and the best way forward, and fight for the optimal outcome.