Abuse and Neglect Blog – New Sexual Consent Laws in New South Wales, Australia

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A few weeks ago we commented in this blog on changes to consent laws in Ireland. Consent is an issue that is getting a lot of attention around the world and there have been changes in New South Wales (NSW) where people are required by law to give and obtain consent before engage in a sexual act. The new affirmative consent laws came into force on June 1, 2022, having been passed by the NSW parliament in November 2021.

The Crimes (Sexual Consent Reforms) Amendment Act 2021 implemented consent reforms that aim to:

  • clarify the consent provisions in the Crimes Act 1900, including that consent is a free and voluntary agreement which should not be presumed;
  • clarify that consent involves continuous and mutual communication;
  • strengthen laws to confirm that consent can be withdrawn and that if someone consents to a sexual act, it does not mean that they have consented to other sexual acts;
  • ensuring fairer and more effective prosecutions for sexual offences;
  • dispel misconceptions about consent in trial proceedings;
  • improve victims’ experience of the justice system and jurors’ understanding of the complexities of sexual offending and reporting through the introduction of new jury instructions.

Under the new law, a person is not considered to have consented to a sexual act unless they say or do something to indicate consent. The new laws require parties to give and obtain consent “at the time of the act”. This means that consent which could have been given earlier is not sufficient. A person cannot consent if they are so drunk that they cannot choose or refuse to participate, and they cannot consent if they are asleep or unconscious. Nor will a person have a reasonable belief that there is consent unless they have done or asked for something to ascertain it.

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