What’s wrong with affirmative consent laws NSW?

What’s wrong with affirmative consent laws NSW?

Affirmative consent has changed the law in relation to sexual assaults and what wasn’t a sexual assault prior to June 2022 may be one now.

The new laws mean that affirmative consent must be obtained before sexual intercourse or touching takes place. Affirmative consent means permission needs to be sought prior to sexual activity, and consent needs to be actively and clearly stated before ‘sex’ occurs. The effect of the law is that you will be guilty of a sex offence if the person you have sex with doesn’t consent even if they don’t communicate to you in any way that they are not consenting. The law represents a shift from the old “no means no” to a new “yes means yes” approach to consent.

The change impacts the way knowledge of consent is regarded when sexual activity takes place. In the past, it was considered reasonable grounds to assume someone had consented to sexual activity if there was a lack of a clear objection to it.  This was often used as a defence in court. Now, if a person raises the defence of reasonable grounds for believing consent was present, the prosecution will be able to establish the sexual offence occurred where it is proved beyond reasonable doubt that an accused person did not do or say something to confirm consent existed.

Affirmative consent laws cover both sexual intercourse and sexual touching. Sexual intercourse includes any act that penetrates the vagina or anus, including with the penis, fingers and other parts of the body or objects, as well as oral sex on both a man and woman. Sexual touching is touching any part of the body in circumstances where a reasonable person would consider the touching to be sexual.

Consent can be withdrawn during sexual activity, so by law, there is now arguably a responsibility on people not only to obtain consent prior to sexual intercourse but during it too.

Why has the law changed to affirmative consent?

The NSW government announced the changes to sexual consent laws in May 2021 and the law was changed in June 2022. The changes were recommended following a review by the Law Reform Commission (NSWLRC) into sexual assault legislation with the intention being to help overcome hurdles to convictions for sexual assault cases.   As such, changes will be made to the Crimes Act 1900, amending the sections that deal with consent and an accused knowledge of consent in relation to various sex offences.

With the priority being on obtaining more convictions, rather than the determination of guilt or innocence, the new affirmative consent laws are a major risk to injustice for the falsely accused.

The problem with the new affirmative consent laws

The main problem with affirmative consent laws is that they have the potential to criminalise consensual sex. Unfortunately, the new laws ignore how sexual activity normally takes place. Sexual intercourse often takes place without explicit communication about what is going to happen.

Furthermore, the requirement of checking for and communicating consent for each and every sexual act could cause complications due to the fluid nature of most sexual interactions. Determining what constitutes a need for consent to be re-established during one interaction could be difficult.

Given consent can be withdrawn, consent for one act does not mean consent to another and the idea of consent is that it is given through ongoing mutual communication, then consent cannot be recorded prior to a sexual act taking place.

What is the meaning of Consent NSW?

The meaning of consent in relation to sexual assault offences is dealt with in section 61HE of the Crimes Act 1900 (NSW).   It states;

“A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity.”

Consent can only be given by someone that is deemed to have the capacity to consent – that is, consent cannot be given by someone that is below the age of legal consent or does not have the intellectual capacity to consent.  This also includes someone who is asleep or unconscious, if someone consents because they were forced or threatened, or if someone is unlawfully detained.

Sexual Consent Laws NSW

The Crimes Act 1900 provides that the law in relation to consent has been designed with the following objectives:

3. Every person has a right to choose whether or not to participate in sexual activity.
4. Consent to sexual activity is not to be presumed.
5. Consensual sexual activity involves ongoing and mutual communication, decision-making and free and voluntary agreement between the persons participating in the sexual activity.

The law in relation to consent states the following:

7. A person consents to sexual activity if, at the time of the sexual activity, the person freely and voluntarily agree to the sexual activity.
8. A person may, by words or conduct, withdraw consent to sexual activity at any time.
9. Sexual activity that occurs after consent has been withdrawn occurs without consent.
10. A person who does not offer physical or verbal resistance to sexual activity is not, by reason only of that fact, to be taken to consent to the sexual activity.
11. A person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity.
12. A person who consents to sexual activity with a person on one occasion is not, by reason only of that fact, to be taken to consent to sexual activity with:
13. that person on another occasion, or
14. another person on that or another occasion.
15. A person is not to be held to consent because they do not say or do anything to communicate consent.

The law in relation to knowledge of consent states the following:

3. A person (the accused person) is taken to know that another person does not consent to sexual activity if:
4. The accused person actually knows the other person does not consent to the sexual activity, or
5. the accused person is reckless as to whether the other person consents to the sexual activity, or
6. any belief that the accused person has, or may have, that the other person consents to the sexual activity is not reasonable in the circumstances.
7. A belief that the other person consents to sexual activity is not reasonable if the accused person did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person consents to the sexual activity. This will not apply if the accused person shows that at the time of the sexual activity, they had a cognitive or mental health impairment that was a substantial cause of the accused person not saying or doing anything.
8. In determining whether the accused person knew the other person was not consenting, a magistrate, judge or jury must consider all the circumstances of the case, including what, if anything, the accused person said or did, but must not consider any self-induced intoxication of the accused person.

The law further states that a person cannot, and does not, consent to sexual activity if:

4. The person does not have the capacity to consent to sexual activity.
5. The person is so affected by alcohol or another drug as to be incapable of consenting to the sexual activity.
6. The person is unconscious or asleep.
7. The person participates in the sexual activity because of force, fear of force or fear of serious harm of any kind to the person, another person, an animal or property, regardless of:
8. When the force or the conduct giving rise to the fear occurs.
9. Whether it occurs as a single instance or as part of an ongoing pattern.
10. The person participates in the sexual activity because of coercion, blackmail or intimidation, regardless of:
11. When the coercion, blackmail or intimidation occurs, or
12. Whether it occurs as a single instance or as part of an ongoing pattern.
13. The person participates in the sexual activity because the person or another person is unlawfully detained.
14. The person participates in the sexual activity because the person is overborne by the abuse of a relationship of authority, trust or dependence.
15. The person participates in the sexual activity because the person is mistaken.
16. The nature of the sexual activity, or
17. The purpose of the sexual activity, including about whether the sexual activity is for health, hygienic or cosmetic purposes.
18. The person participates in sexual activity with another person because the person is mistaken.
19. About the identity of the other person, or
20. That the person is married to the other person.
21. The person participates in the sexual activity because of a fraudulent inducement, but not including a misrepresentation about a person’s income, wealth, or feelings.

What to do if you’ve been charged with a sexual offence?

If you’ve been accused of a sexual offence, it is now more imperative than ever before that you get an experienced sexual assault defence lawyer on your case.  Having a good defence lawyer can help you navigate the tricky legal system and keep you out of jail.

Australian Criminal Law Group is home to the best sexual assault defence lawyers in Sydney, Parramatta and Blacktown.  We have a reputation for beating charges of sexual assault and getting the best results possible for all cases.

Get in touch with the Australian Criminal Law Group on 02 8815 8167 or email us at info@aclawgroup.com.au to get the best defence lawyers on our case.

Sources

The Crimes Act 1900 No 40, Part 7 Division 2, Section 319, Current version for 1 June 2022 to date (accessed 5 June 2022 at 1:46), https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040

This information is intended as a general guide to law only.  It should not be relied on as legal advice and it is recommended that you speak with a qualified lawyer about your situation.

Australian Criminal Law Group and its suppliers make every reasonable effort to ensure the accuracy and validity of the information provided on its web pages. At the time of updating, this information was correct, however, given the laws in NSW and Australia are continually changing, the Australian Criminal Law Group makes no warranties or representations as to its accuracy.