Affirmative Sexual Consent Laws in NSW – What You Need to Know

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Major reforms have been made by the New South Wales parliament regarding the Affirmative Sexual Content laws in the state. The changes have been made to ensure that justice is served to the survivors and victims of sexual assault cases. According to this law, both participants should consent to sexual activity, otherwise it would be considered assault or rape. So, what does this mean, and what can you expect from the law? In this blog, expert criminal lawyers in Sydney will provide you with more information.

An Overview of the NSW Sexual Consent Laws:

On the 23rd of November 2021, the Affirmative Consent Bill was passed by the government, intruding the new affirmative consent principle.  The previous law explicitly stated that the prosecution had to prove that the accused person in a sexual assault or intercourse case (rape) ‘had sexual intercourse with the other person without their consent, and knew that the other person was not consenting’.  However, with the introduction of the new law, sexual consent should be communicated by actions or words, rather than being assumed. Victims’ groups and advocates, who have been demanding to change the law, appreciated the move.

Objectives of the New Law:

Changes have been brought to NSW sexual consent laws to assert that everyone has the right to decide if they should be involved in a sexual activity. Mutual communication is a must for consensual sex. The criminal lawyers in Sydney explain that the individuals participating in sexual intercourse should voluntarily and explicitly agree.

The new law also describes that a person has the right to withdraw consent at any time. Just because someone consented to sex doesn’t mean that they agree to other sexual activities or continue to engage in that or a different activity. For instance, if consent is given to ‘sexual touching’, affirmative consent is still required to proceed with ‘sexual intercourse’.

The best criminal lawyers in Sydney clarify that ‘sexual act’, ‘sexual intercourse’ and ‘sexual touching’ are three different things. The introduction of verbal consent in the new law is designed to clarify any issues surrounding victims who were frozen with fear and unable to tell the perpetrator to stop.

The Reason Behind the Changes:

In many cases, it was not easy to tell if there was consent in a sexual activity with the previous law. The case of Luke Lazarus – who was accused of rape by Saxon Mullins – is a glaring example of the same. In the case, Luke was initially found guilty in the first trial; however, he was acquitted of all charges in a retrial. Later, the court of criminal appeal specified that there wouldn’t be a third trial because the prosecution were unable to prove beyond a reasonable doubt that Mr Lazarus knew Ms Mullins was not consenting. The reforms will hopefully bring more clarity in sexual assault cases.

NSW Attorney-General Mark Speakman said, “No law can ever erase the trauma of sexual assault, but we have listened to calls for change and consulted victim-survivors and legal experts to improve our response to sexual violence.”

If you have any questions about the new sexual consent law, get in touch with our top criminal law firms in Sydney today. You can reach the Powerhouse Law team 24/7 on 1800 100 529 or submit your details through the online form.