Affirmative sexual consent is now legally required in NSW, five months after the state parliament passed reforms to strengthen protections.
Last November, the NSW parliament passed an amendment which clarifies, modernises and simplifies consent law.
The new law defines consent as a free and voluntary agreement that cannot be presumed, and involves ongoing, mutual communication.
The laws also clarified that if a person consents to one sex act, it does not mean they have consented to other acts.
The amendment clarifies a person who is asleep, unconscious or intoxicated is not able to consent, with the government set to issue new directions to juries involved in assault trials.
NSW Attorney General Mark Speakman said the new laws clarify that to engage in sexual activity with somebody, a person needs to say something to show consent, or needs to do or say something to seek consent.
“These laws set clearer boundaries for consensual sex, reinforce the basic principle of common decency that consent is a free choice involving mutual and ongoing communication, and reinforce that consent should not be presumed,” Mr Speakman said.
The attorney-general said the reforms were just one part of tackling sexual violence in NSW.
“The consent reforms are not just about holding perpetrators to account, but changing social behaviour with clearer rules of engagement to drive down the rate of sexual assaults,” Mr Speakman said.
The government launched an awareness campaign in the lead up to the implementation of the laws, and the attorney-general said he was committed to ensuring the community understood the changes.
Over the last six months the NSW government has also worked with judicial officers, prosecutors, defence lawyers and police to ensure they are well-informed about the change.
The change is expected to improve the experience for victims within the justice system, and five new directions will be available for judges to hand to juries, to address misconceptions about consent.
Those directions will clarify that sexual assault can occur in many situations including between acquaintances and married couples; that sexual offences do not always include violence or result in injuries; there are no ‘typical’ responses to sexual assault; trauma affects all victims differently; and consent cannot be assumed due to behaviour including clothing, alcohol or drug consumption.
The change in law followed a review by the NSW Law Reforms Commission which took in more than 190 submissions and extensive community consultation.
The review was prompted by survivor and advocate Saxon Mullins sharing her story on ABC’s Four Corners in 2018.
CONSENT IN NSW FACTS
* Under the new consent laws, people will not be able to assume consent from somebody because they don’t say no – silence is not consent.
* Consent is considered an ongoing process, and a person can change their mind or withdraw consent at any time.
* A person will not be able to consent if they are so intoxicated they can not make a choice, or refuse.
* Consent can only be given freely and voluntarily, and cannot involve coercion or force.
* Just because a person consents to one sexual act does not mean they have consented to others – consent must be present for all acts.
* Consent cannot be given by people who are asleep or unconscious.
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