An important deciding factor in many sexual assault cases is whether both parties consented to the activity. While you may understand logically what consent is, you may not know all the ways in which it can be applied under the law. Here are the most important basics for understanding the laws of consent in NSW.

What is consent?

Consent is your free and voluntary agreement to participate in any form of sexual activity. This includes both sexual intercourse and oral sex. A person must give their consent before engaging in sexual activities, otherwise it may become a situation of sexual assault. A person may remove their consent at any time, whether they have begun sexual acts or not. If a person removes their consent, the sexual acts must stop.

Learn more about definitions of sexual assault in What is Sexual Assault – Part 1 and Part 2.

The age of consent in NSW

In NSW the legal age of consent is 16 years old. Having sex with a person under this age is considered illegal. There is one exception to this rule; a person who is 14-15 years old may consent to sex with a person who is less than 2 years older than they are. This person must also not be in a position of authority over the minor.

When are you unable to give consent?

There are some situations where a person is considered unable to give their consent. Common examples of this include:

• Inability to give consent due to age, mental or physical impairment
• The person is asleep or unconscious
• The person is heavily influenced by drugs/alcohol
• The person has been threatened or forced
• The person is restrained against their wishes
• The person has been manipulated into giving consent

Proposed changes to NSW law in 2020

In October 2019 the NSW government released draft proposals to update the laws of consent. These new laws would be similar to existing ones in Victoria and Tasmania. Under these new laws, a person who does not say or do anything to show they are consenting, cannot be deemed to have given consent. It may help to recognise that a person may ‘freeze’ in fear and that this is not the same as giving consent. As of February 2020, these laws are still under debate by legal experts with both support and concern expressed over their application.

Make informed choices with professional legal advice

Navigating the laws of consent is often difficult, which is why you should always seek professional help. If you or someone you know has been accused of a crime, get in touch with qualified lawyers as soon as possible. You can reach the Powerhouse Law team 24/7 on 1800 100 529 or submit your details online.