New Consent Laws
The NSW Parliament has enacted new affirmative consent laws requiring people to seek ongoing consent before they engage in sexual activities. In a nutshell this means before and during sexual relations you must continue to check in with your partner.
The meaning of consent
According to the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021, sexual consent involves the act of ‘freely and voluntarily’ agreeing to engage in sexual activity. Such sexual activity includes kissing, touching and penetrative sex. The legislation also specifies that the agreement ‘must be at the time of the act’, and ‘ongoing’.
What this in effect entails is that consent can be withdrawn at any time, and that should a person be given consent at an earlier time, it is not to assume that the consent still applies before the commission of the sexual activity. Moreover, it is not to assume that if consent was given to one sexual act, that that person has consented to all other sexual acts.
According to NSW Attorney General Mark Speakman “Consent can’t be assumed from silence or inactivity”. As such, a person does not consent to sexual activity unless they do something or say something.
New consent laws and the justice system
Sexual offences are a complex area of law. In the past, before the enaction of these changes people would not be convicted if they could show on reasonable grounds that there was an honest but mistaken belief that consent was given. Having an affirmative and ongoing requirement for consent will ensure a fairer and more effective prosecution of sexual offences.
Although it seems as a fairer initiative to prosecute cases relating to sexual assault, there should also be an extent as to how the consent is to be documented, namely by writing or through voice recording or video. The problem with such way of consent is that although it would safely guard the parties, it would also interfere with their private lives since they are documenting their consent to sexual activities. And as such materials can be used by either party, for blackmail or the like. However, if one does not document the consent, it might be difficult for them to demonstrate they had a reasonable belief consent was given, and that they took affirmative action to ascertain it was given.
If you are charged with sexual assault or any crimes relating to sexual conduct, call Rep-Revive Criminal and Employment Lawyers® now for a free consultation.