Understanding the New Affirmative Consent Laws in NSW

New South Wales has rewritten the law on sexual consent. The affirmative consent model changes what the prosecution must establish, what an accused person can rely on, and where the focus of a trial falls. Anyone facing an allegation under these provisions needs to understand how the ground has shifted.

What is Affirmative Consent?

Consent is no longer simply the absence of a refusal. It must be communicated, through words or actions. The legislation states that a person does not consent to sexual activity unless they freely and voluntarily agree to it.

A person seeking consent must take active steps to find out whether the other person is consenting. Silence is not agreement. Neither is passivity.

The "Reasonable Belief" Test

Historically, an accused person could defend a sexual assault charge by arguing they honestly believed the other person was consenting. That belief must now be reasonable in the circumstances.

A belief will not be considered reasonable unless the accused can demonstrate they took steps, through words or conduct, to ascertain consent. The court will consider what steps were taken, or whether there was a valid reason why none were. Those valid reasons are strictly limited.

Vitiation of Consent

The legislation also clarifies when consent is vitiated, meaning invalidated. This includes where a person is substantially intoxicated by drugs or alcohol, where they are intimidated or coerced, or where there is an abuse of authority.

Implications for Criminal Defence

Defending a charge under this model requires a different kind of preparation. Cases now turn heavily on the communication between the parties and on what the accused actually did to establish consent, which in practice means the detail of messages, timelines and accounts of the evening carries far more weight than it once did. At NS Criminal Lawyers & Associates, we stay across these legislative changes to provide informed defence strategies for our clients.