What are the Sexual Consent laws in NSW?
Sexual consent laws in NSW
It is paramount that everybody knows the sexual consent laws in their state. Without obtaining consent from your sexual partner, you are guilty of sexual assault. As a result, you could face serious penalties, including prison time.
The Crimes Act 1900 states that anyone who has sexual intercourse with another without their consent commits a sexual assault. However, unwanted touching also falls under sexual assault. This offence comes with a potential penalty of 14 years imprisonment. Consent regarding sexual offences is also governed by Subdivision 1A of the Crimes Act 1900.
What is consent?
Consent is when someone freely and voluntarily gives permission to another for a sexual activity. For example, consenting for another to touch, have sexual intercourse with, or engage in another sexual act with them.
Consent must be freely and voluntarily given every time. Therefore, if someone pressures another to give consent, it is not valid. Additionally, consent must be present on every occasion. However, if someone consents one time, this does not mean they consent to every sexual act with that person.
Withdrawing consent
Also, someone can withdraw consent at any moment. Therefore, that means if someone consents at the beginning and then wants to stop, they can.
Not displaying a “physical or verbal resistance to a sexual activity” does also not alone constitute consent. However, consent does not have to be through words. Someone can also communicate consent by gestures. For example, reciprocating body language like kissing them back or removing clothes.
When is consent not valid in NSW?
It is also impossible for someone to give consent in the following situations. For example, there is no consent if:
- Someone is unconscious or asleep,
- One party is so intoxicated they can’t give consent,
- Someone is forced, intimidated, or otherwise coerced into consenting,
- One party suffers from a cognitive disability,
- A party is only participating because the other there is a relationship of authority,
- One party is unlawfully detained.
Sexual Assault
Consent is a vital component of sexual offence law. Basically, a sexual act includes:
- Sexual intercourse,
- Other sexual activity,
- And unwanted touching.
What is aggravated sexual assault in NSW?
If the offender threatens to use physical violence, the offence becomes aggravated sexual assault. However, if the offender breaks into a property to commit the crime, the sexual assault also becomes aggravated. The same applies if the victim is under 16.
Also, if the victim suffers from a cognitive or physical disability, it is an aggravated sexual assault.
Aggravated sexual assault carries a potential penalty of up to 20 years imprisonment.
However, if the offender commits the sexual assault in the presence of another person, and threatens to or causes the victim physical harm, they may face life in prison.
Sexual consent laws and minors
In NSW, someone can only legally consent to sexual intercourse at 16 years of age. The penalties for having sexual relations with a minor are extremely serious. If found guilty, you could serve prison time, up to life imprisonment. Additionally, the court put offenders on the NSW Child Protection Register (Sex Offender Register).
Cognitive Impairment and Consent
The Crimes Act 1900 (NSW) explains that it is more difficult for someone with a cognitive disability to give consent. A cognitive disability like an intellectual disability, dementia, severe mental illness, or brain injury. This is because they might not know what they are consenting for. Additionally, this group are often easier for predators to pressure into giving consent.
Prosecuting for lack of consent
Sexual consent cases can be difficult. In the proceedings, the prosecution must prove beyond reasonable doubt that the complainant did not consent. Additionally, the prosecution must show that the accused was aware of the lack of consent.
Someone will be deemed to have known there was no consent if:
- They had actual knowledge that the other party did not consent,
- Any belief that the consent was not reasonable,
- Or the accused was reckless about the consent.
Penalties for sexual assault
- Sexual assault carries a potential maximum imprisonment of 14 years,
- Aggravated sexual assault carries 20 years,
- Sexual touching carries a maximum of 5 years,
- Or aggravated sexual touching carries a maximum of 7 years.
Nationally Coordinated Criminal History Check
If someone is found guilty of a sexual offence, the court decision will appear on the results of their Nationally Coordinated Criminal History Check. You can get a police check for an individual online via the Australian National Character Check – ANCC® website.
Summary of consent and sexual assault
In summary, the sexual consent laws state that:
- Everyone has the right to choose if they want to participate in any sexual activity,
- Consent is not to be presumed,
- Consensual sexual activity involves continuous and mutual communication,
- Finally, all parties in the sexual act must voluntarily and freely give consent.
How we Can Help
O’Brien Criminal & Civil Solicitors is a full-service criminal defence law firm. We provide legal advice on both criminal and civil law. We have also represented many clients in their criminal matters and then proceeded to assist them in making a civil claim. This might be against the police for unlawful arrest and false imprisonment, or suing a publisher for defamation.
Your first consultation with one of our criminal lawyers is free. This is your opportunity to speak to us about your case. If you choose to proceed with our services, we will provide you with a cost agreement. O’Brien Criminal and Civil Solicitors provides cost-effective and professional legal advice.
In some instances, we offer reduced fees or pro bono services at the discretion of our Principal. We can also assist you in applying for Legal Aid. Speak to us if you have concerns regarding your ability to pay your legal fees.
Our criminal lawyers have handled cases in courts across NSW at Local Courts, District Courts and the NSW Court of Criminal Appeal. They have a wealth of experience in assisting clients with bail applications, trials, sentencing hearings and appeals to name a few.
O’Brien Criminal and Civil Solicitors utilises a trauma-informed lawyering approach when interacting with our clients. We understand that you have dealt with traumatic events. We know that engaging with authorities and courts is a stressful experience that might re-traumatise you. Our lawyers are sensitive to your mental and emotional needs and will assist you in an appropriate manner. Read more about our thoughts on trauma-informed lawyering.
