New South Wales overhauled its sexual consent laws in 2021 and brought those changes into effect on 1 June 2022. Four years on, these reforms are reshaping how sexual assault prosecutions run in NSW courts and how accused persons must approach their defence.
If you or someone you know is charged with a sexual offence in NSW, understanding exactly what the law now requires is not optional. It is the foundation of your case.
What Was Wrong With The Old NSW Consent Laws?
Before 1 June 2022, the prosecution had to prove the accused knew the complainant was not consenting, or was reckless as to whether consent had been given. The focus was on what the accused believed, not on what active steps they took to confirm consent.
This produced outcomes that, in some cases, the courts themselves described as unsatisfactory. The most prominent example was the Saxon Mullins and Luke Lazarus matter, a case that ran across two trials, five years of litigation, and ultimately could not be retried, partly because the legal standard at the time centred on the accused’s subjective belief. Silence and physical passivity could be relied upon to support a claim of honest and reasonable belief in consent.
That framework no longer applies.
What The Crimes Amendment (Sexual Consent Reforms) Act 2021 Changed
The amended several sections of the and introduced new mandatory jury directions under the . The changes commenced on 1 June 2022, following a comprehensive review by the .
1. Consent Must Now Be Communicated
Under section 61HF of the Crimes Act 1900, a person does not consent to sexual activity if they do not say or do anything to communicate consent. Silence, passivity, and the absence of physical resistance are no longer capable of constituting consent.
Other circumstances where consent cannot exist include:
- The person is asleep or unconscious
- The person is intoxicated to the point of incapacity
- The person is under threat of force or intimidation
- The person is mistaken about the identity of the other person
- The person believes the activity is a medical or professional procedure when it is not
- The consent was obtained through abuse of a position of authority or trust
2. The Accused Must Take Reasonable Steps to Ascertain Consent
This is the most significant change for anyone facing a sexual assault charge.
Under section 61HG of the Crimes Act 1900, an accused person does not have a genuine belief in consent if they did not take reasonable steps, in the circumstances known to them at the time, to ascertain whether the other person was consenting.
The question is no longer only what the accused believed. It is whether a reasonable person in those same circumstances would have taken active steps to confirm consent, and whether those steps were actually taken.
The law is also explicit about what does not count as taking reasonable steps:
- The complainant not saying no
- The complainant not physically resisting
- The complainant being intoxicated (where that intoxication may have impaired capacity)
- A prior sexual relationship or history between the parties
3. New Mandatory Jury Directions
Courts are now required to direct juries that:
- The absence of physical resistance does not indicate consent
- Silence does not indicate consent
- Prior sexual activity between the parties does not establish consent on a subsequent occasion
- Being in a relationship does not mean consent is ongoing or assumed
These directions directly address patterns that had historically been used to undermine complainant credibility at trial.
What The NSW Consent Laws Mean If You Are Charged
The burden of proof has not shifted. The prosecution must still prove beyond reasonable doubt that:
- The complainant did not consent; and
- The accused did not have a genuine and reasonable belief in consent.
However, element two now has an objective component. It is no longer sufficient to assert “I honestly believed she was consenting.” The question is whether you took active, reasonable steps to ascertain consent given the specific circumstances you were in. What was said? What did the other person say or do? What did you do to confirm they were freely and genuinely agreeing?
These are exactly the questions an experienced criminal defence lawyer will work through carefully in preparing your case.
Defence Considerations
Charges under the new framework are serious, and the prosecutorial approach has evolved since June 2022. Some practical realities for accused persons:
The “honest and reasonable belief” defence still exists, but it now requires demonstrating affirmative steps were taken to ascertain consent. A bare assertion that you believed the person was consenting is unlikely to be sufficient on its own.
Context matters. What was said, what actions were taken, the surrounding circumstances, intoxication levels, how the interaction unfolded, all of these feed directly into whether reasonable steps were taken. Evidence should be gathered and preserved as early as possible.
Early legal advice is critical. Police questioning after a complaint will often probe the consent issue directly. can significantly affect your options down the track. You are entitled to .
Frequently Asked Questions
Does this mean I am automatically guilty if the other person says they did not consent?
No. The prosecution must prove both elements beyond reasonable doubt. An allegation is not a conviction. You have and the right to silence in police questioning.
What if we had been together before?
A prior sexual relationship between the parties does not establish that consent existed on the occasion in question. The reforms address this explicitly. Each encounter requires freely and voluntarily given consent.
Does intoxication affect consent?
Yes. If a person is intoxicated to the point where they cannot give consent, any sexual activity is a criminal offence. The intoxication of the accused is not a defence to a sexual assault charge.
What penalties apply?
- Sexual assault (s 61I, Crimes Act 1900): maximum 14 years imprisonment
- Aggravated sexual assault (s 61J): maximum 20 years imprisonment
- Aggravated sexual assault in company (s 61JA): maximum life imprisonment
Speak to a Specialist Criminal Defence Lawyer
If you have been charged with, or are under investigation for, a sexual offence in NSW, get specialist legal advice as early as possible. The consent framework has changed materially, and the stakes are too high to rely on how these cases used to work.
O’Brien Criminal and Civil Solicitors are NSW criminal law specialists with decades of experience defending sexual assault charges. We offer a free, confidential, no-obligation consultation.
To enquire online or call (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.
Sarah is a civil solicitor who primarily practices in defamation, intentional torts against police, privacy and harassment.
