In NSW, consent means freely and voluntarily agreeing to a sexual activity at the time it happens. Consent must be communicated, and it can be withdrawn at any time.
If an allegation involves consent, the words used, the circumstances and the date of the alleged activity are all very important in cases. This guide explains the consent rules and the steps you can take if police contact you.
At a glance: Consent cannot be presumed from silence, a relationship or a previous encounter. The current statutory rules apply to relevant offences committed on or after 1 June 2022. There is no single “consent offence” or penalty: the charge determines the possible consequences.
What does sexual consent mean in NSW?
A person consents to a sexual activity if, at the time of the sexual activity, they freely and voluntarily agree to it. Consent must be communicated by words or actions; a person who says or does nothing to communicate consent does not consent to that activity.
Section 61HI of the Crimes Act 1900 (NSW) sets out the meaning of consent:
- A person can withdraw consent through words or conduct at any time.
- Sexual activity after consent is withdrawn takes place without consent.
- Not physically or verbally resisting does not, by itself, establish consent.
- Agreeing to one activity does not, by itself, mean agreeing to another.
- Agreeing on one occasion does not, by itself, mean agreeing on a later occasion or with someone else.
A very important component of this law is that a relationship or marriage does not replace the need for consent. The Act also gives a specific example: agreeing to activity with a condom does not mean agreeing to activity without one.
What does affirmative consent require?
The NSW rules require communication of consent. They also address what a person does to find out whether the other person agrees.
| Question | What the law considers |
|---|---|
| Did the other person consent? | Whether they freely and voluntarily agreed. Under s 61HJ, a person does not consent to a sexual activity if they do not say or do anything to communicate consent to that activity. |
| What did the accused know or believe? | Under section 61HK, knowledge includes actual knowledge, recklessness, or a belief in consent that was not reasonable in the circumstances. |
However, a verbal “yes” is not the only way to communicate consent. Equally, a particular gesture cannot be treated as automatic agreement to every sexual activity.
Under section 61HK(2), a belief in consent is not reasonable if the accused did not, within a reasonable time before or at the time of the activity, say or do anything to find out whether the other person consented.
This does not apply if a cognitive or mental health impairment substantially caused that failure, provided the accused proves both matters on the balance of probabilities.
When is there no consent?
Section 61HJ identifies circumstances in which a person does not consent. The list is not exhaustive.
These include situations where a person:
- does nothing to communicate consent;
- lacks the capacity to consent to the activity;
- is so affected by alcohol or another drug that they cannot consent;
- is asleep or unconscious;
- participates because of force, fear of force or fear of serious harm;
- participates because of coercion, blackmail or intimidation;
- participates because the person or another person is unlawfully detained; or
- participates because the person is overborne by the abuse of a relationship of authority, trust or dependence.
Section 61HJ also covers certain mistakes about the activity, its purpose or the other person’s identity, and fraudulent inducement. Misrepresentations about income, wealth or feelings do not amount to fraudulent inducement.
Does drinking alcohol mean a person cannot consent?
Not automatically. The statutory question is whether alcohol or another drug affected the person so much that they were incapable of consenting. Other circumstances may also establish an absence of consent.
When assessing whether an accused’s belief in consent was reasonable, any self-induced intoxication must be disregarded. Intoxication therefore does not lower the standard for a reasonable belief in consent.
Can a person with a disability consent?
A disability does not automatically remove the ability to consent. The question includes whether the person had capacity to consent to the particular activity. It is inaccurate to say that everyone with a cognitive disability cannot consent.
Separate offences can apply where a person with cognitive impairment is involved in sexual activity in particular circumstances, including where the other person is a carer or is in a position of authority, or where the activity is exploitative. Section 66F requires separate consideration and should not be treated as part of the general consent rules.
What must the prosecution prove?
For sexual assault under section 61I, the prosecution must prove beyond reasonable doubt that there was sexual intercourse, the other person did not consent, and the accused knew this. Knowledge includes recklessness or an unreasonable belief in consent. The accused does not have to prove innocence.
Consent is also relevant to sexual touching and sexual act offences. These are distinct offences with different elements and penalties, rather than every form of unwanted contact carrying the same charge.
For charge-specific information, read our guides to sexual assault charges in NSW and sexual touching charges.
Your rights and what you can do now
If police ask to speak with you about a sexual offence allegation, you should get legal advice before answering questions. Sexual charges are extremely serious. You generally have a right to silence, but legal exceptions need individual advice.
- Preserve existing evidence. Keep complete message threads, call records, receipts and relevant dates. Do not delete or edit material, even if part of it seems unhelpful.
- Make private notes for your lawyer. Record what you remember, including the words and actions surrounding the alleged activity. Separate recollection from assumptions.
- Avoid direct contact about the allegation. Do not pressure anyone to change their account. Ask your lawyer how relevant information should be obtained.
- Follow existing orders. Read any bail conditions or other court orders carefully and seek advice about anything unclear.
- Keep the matter private. Avoid discussing the allegation on social media or circulating identifying information.
How could a criminal lawyer help with a consent allegation?
Our criminal lawyers can identify the law applying on the alleged date and test the evidence against each element of the charge. Historical allegations may be governed by earlier consent provisions.
That work may include checking messages in context, identifying witnesses and examining what the prosecution says was communicated. Where capacity or impairment is genuinely relevant, appropriate expert evidence may be needed.
Your lawyer can advise on the police interview, bail and the available response to the charge. The advice depends on the evidence; there is no automatic defence based on a previous relationship, an earlier encounter or alcohol consumption.
Frequently asked questions
Can consent be withdrawn after sexual activity starts?
Yes. A person can withdraw consent through words or conduct at any time. Activity that continues after withdrawal occurs without consent.
Do these consent rules apply to older allegations?
The alleged date matters. The current framework applies to relevant offences committed on or after 1 June 2022. A lawyer should check the law applying to an earlier allegation rather than assume the current provisions apply retrospectively.
What is the age of consent in NSW?
In NSW, the general age of consent is 16. Separate offences apply to sexual activity involving children under 16. Special-care offences can also apply to sexual activity with a 16- or 17-year-old where the alleged offender is in a special-care relationship, such as a teacher, foster carer, religious leader or certain health professional.
How O’Brien Criminal & Civil Solicitors can help
Our sexual assault lawyers can advise from the first police contact, review the evidence and explain your options. We approach sensitive allegations with care and clear advice about the issues your case raises.
Request initial advice (no-obligation) via the form below or call us on (02) 9261 4281.
This content is for general information purposes only and does not constitute legal advice. You should seek independent legal advice relevant to your specific circumstances.
