Here are some common questions about sexual consent in sexual assault cases

1. Do I need to obtain actual consent, or can there be implied consent?

Sexual consent can be given expressly via words, or it can be inferred from a person’s conduct. Conduct can include body language and gestures, but in general it should be initiated by the other person, and it must be clear and unequivocal that they are consenting to a particular sexual activity.

It is very risky to rely on a person’s conduct as an indication of consent because they are not as clear and obvious as direct words. This is especially the case if the other person’s actions are subtle and can be interpreted in multiple ways. For example, what you think is a flirtatious gaze may have just been a friendly glance and not a sign that the person wants to be sexually intimate. Even if the other person initiates a kiss or starts hugging you, this does not mean you can start touching them sexually. It is recommended to always confirm sexual consent with the other person and obtain their verbal consent before starting any sexual touching or sexual activity.

2. How do I ask for consent?

You can ask questions such as “can I kiss/touch you?”, or “do you want to have sex?”
During the sexual activity you can ask questions such as “is this okay?”, “how does that feel?”, “should I stop?”, or “do you want me to continue?”.

3. Do I need to keep asking for consent?

Yes, whenever you start any touching or sexual activity and even during sex, you should be checking to see if the other person is consenting.
This is because under the current NSW legislation, a person can withdraw sexual consent at any time through words or conduct. Words such as “no”, “stop” or “I don’t want this” can be clear indicators that the other person is not consenting. Conduct such as crying, shaking the head, flinching, kicking, and resisting can be indicators that the other person is not consenting.

If any words or actions from the other person makes you hesitate or think that they might not want to proceed, you should always ask them if they are feeling okay and whether you should continue or not.

The law on sexual consent also states that if a person consents to one particular sexual activity, that does not mean they are consenting to other sexual activity. For example, consent to touching on the face and chest does not automatically mean consent to touching of the lower body, or even to kissing. Consent to vaginal sex does not mean consent to anal sex.

Consent to protected sex does not mean consent to unprotected sex.
Unfortunately, this means that you will have to ask for consent before starting any new sexual activity, and you will need to be perceptive of how the other person is reacting during any sexual activity and check up on how they are feeling from time to time.

4. What should I be doing if the other person is not saying or doing anything?

If you have asked them if they consent but they are not responding, you should stop immediately and not engage in the sexual activity.
Even if the person does not physically or verbally resist your advances, the law does not recognise that as meaning sexual consent. Consent must be positively given by the other person, i.e., there must be words given or action made by that person to signify their consent. You should also be careful to make sure that you are not inadvertently threatening, intimidating, blackmailing, or coercing them into having sex as this may negate any sexual consent given.

5. Can a person consent while they are intoxicated?

If the level of intoxication, whether by alcohol, drugs or otherwise, is significant enough such that they cannot think clearly about the decision to have sex, or are blacking in and out of consciousness, or otherwise cannot freely and voluntarily give sexual consent then they are not consenting no matter what they say or do. If you have any doubts about their ability to properly consent, it is recommended that you stop and do not proceed.

If the person is only moderately drunk or high and their ability to think is not significantly impaired, then they may be able to give sexual consent. Again, this could be risky, and you should be clear about receiving sexual consent from them.

6. If I often have consensual sex with my partner, do I still need to ask for sexual consent each time?

Yes, you should always ask for consent even if it is something that you do frequently. The legislation states that consent given on one occasion does not mean they are consenting to future occasions of sexual activity. Common sense would also tell you that there will be times when a person does not want to have sex or be sexually touched even if you are married or in an intimate relationship with them.

7. Am I allowed to touch my partner sexually while they are sleeping?

No, you cannot. The law states that a person does not consent to any sexual activity if they are asleep or unconscious.
Possible red flags include if the person has their eyes closed, has slurred or delayed speech, is unable to properly move their body, is not aware of their surroundings, or is mistaken about your identity.

8. I think a person who wants to be intimate is underage, but they seem willing, and they tell me they are consenting. Is this okay or am I committing a crime?

The age of consent in NSW is 16 years of age. This means that a person under the age of 16 cannot consent to any sexual activity and you will be committing an offence notwithstanding what the other person has said or done.

9. What happens if the other person agrees to have sex if I pay them, but I don’t end up paying them?

If there is a mutual understanding that consent to the sexual activity was conditional on payment, and you do not pay them or have paid them noticeably less than the agreed amount, then it is likely that a court will find that you fraudulently induced the other person, that is, you tricked them into giving consent.

Under current NSW legislation, a person does not consent to a sexual activity if they participated in that activity because of fraudulent inducement. This is because the other person’s understanding was that by consenting to the sexual activity, you will compensate them appropriately with money. The fact that you did not pay them fully suggests that you lied about the agreement and that you tricked them into having sex with the promise of money.

The position is less certain if you deferred payment at the time but later did actually end up paying the full agreed amount. In such a case it is likely that legal argumentation will need to be made in court as to whether or not that conduct constitutes fraudulent inducement.

10. I joked to my classmate that kissing is good for your health and they let me kiss them. I know they have no sexual interest in me, and I feel a little guilty about that happening. Did I do something wrong?

If the reason that they gave consent to kiss was because they thought it boosts their health and that belief was mistaken, the law states that they have not properly consented. This principle applies to any sexual activity where the person is mistaken about the nature or purpose of the sexual activity, including whether they participated because they mistakenly thought it was for health, hygienic, or cosmetic purposes.