Sexual assault charges are among the most serious criminal allegations a person can face in New South Wales (NSW). At Pannu Lawyers, we understand that the concept of consent is central to both the prosecution and defence of these matters.
This article explains how consent is legally defined and proven in NSW sexual assault cases, providing clarity for those seeking to understand their rights and obligations under the law.
What is Consent Under NSW Law?
The legal definition of consent in NSW is set out in the Crimes Act 1900 (NSW), which was significantly amended by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021. These reforms, which commenced on 1 June 2022, introduced an “affirmative consent” model.
Key Elements of Consent
1. Affirmative and Communicated:
Consent means a person freely and voluntarily agrees to sexual activity. It must be communicated by words or actions. Silence or lack of resistance does not amount to consent.
2. Ongoing and Specific:
Consent must be present at every stage of sexual activity. Agreeing to one act does not mean agreeing to others, and consent can be withdrawn at any time.
3. Capacity to Consent:
A person cannot consent if they are underage, asleep, unconscious, affected by drugs or alcohol to the point of incapacity, or subject to threats, coercion, or deception.
4. No Presumption of Consent:
The law makes clear that a person does not consent just because they did not physically resist or because of any prior relationship.
How is Consent Proven in Sexual Assault Cases?
In NSW, the prosecution must prove beyond reasonable doubt that:
The complainant did not consent to the sexual activity; and
The accused knew the complainant was not consenting, was reckless as to whether they were consenting, or did not reasonably believe there was consent.
Affirmative Steps Requirement
A key feature of the current law is the requirement for the accused to take active steps to ascertain consent. This means that, for a belief in consent to be considered reasonable, the accused must have said or done something to confirm the other person’s willingness to participate.
Circumstances Where Consent Cannot Exist
The Crimes Act 1900 (NSW) lists specific situations where consent is deemed not to exist, including:
The person does not say or do anything to communicate consent.
The person is incapable of consenting due to intoxication, unconsciousness, or cognitive impairment.
The person is coerced, threatened, or deceived about the nature of the act or the identity of the other person.
Evidence in Court
Complainant’s Testimony: The complainant’s account of what occurred, including what was said and done, is central to the case.
Accused’s Testimony: The accused may give evidence about their understanding of consent and what steps they took to confirm it.
Corroborating Evidence: Forensic, medical, or third-party evidence may support or challenge the accounts given.
Jury Directions: Judges must direct juries on the legal meaning of consent, the need for affirmative steps, and the circumstances where consent cannot exist.
Why Understanding Consent Matters
At Pannu Lawyers, we have seen first-hand how misunderstandings about consent can lead to serious legal consequences. The law in NSW is clear: consent must be actively communicated and cannot be assumed. Anyone engaging in sexual activity must ensure that their partner is freely and voluntarily agreeing at every stage.
If you or someone you know is facing sexual assault charges, or if you have questions about how consent is defined and proven in NSW, contact Pannu Lawyers for confidential and professional legal advice.
