The NSW Government announced in late May 2021 that the law of consent and sexual assault will be dramatically changed, introducing an “affirmative model of consent”. The consent changes will have two key elements:

1. Firstly, a person does not consent to sexual activity unless they do or say something to communicate that consent.
2. Secondly, an accused‘s belief in consent will not be reasonable unless the accused said or did something to ascertain that consent.

Both are a significant departure from the current law on consent, and will have some wide ranging consequences.

What is the current law on consent?

The prosecution must prove beyond a reasonable doubt that an accused knew the other person did not consent. Consent in relation to all sexual offences is provided for in Section 61HE of the Crimes Act 1900.

A person only “consents” to sexual activity if they do so freely and voluntary. If a person does not consent, the accused knows they do not consent if:

1. they know the other person does not consent; or
2. they are reckless about whether the other persons consents; or
3. the accused has no reasonable grounds for believing the other person consents.

Currently, in determining whether an accused has no reasonable grounds for believing the other person consents, a jury considers all the circumstances and must take into account any steps taken by the accused to ascertain whether the other person consents. However, just because steps were not taken to ascertain consent, that does not currently mean the accused knew the other person was not consenting.

The “Affirmative Model of Consent”

After the reforms, if a person claims they did not consent and a jury is satisfied they did not say or do anything to communicate consent, they did not consent.

Just as significantly, unless an accused person can establish they did or said something to ascertain consent, they knew the other person did not consent.

What will this mean?

The detail will be crucial. However, regardless of how it is implemented, these reforms are the most substantial changes to the law on consent in recent times and will undoubtedly have a wide range of consequences.

One consequence is that in many cases, the accused will now bear the evidentiary onus of proving they did not know the other person was not consenting. This will mean that an accused will have to give evidence at trial to establish what steps they took to ascertain consent. This practically changes a fundamental premise of criminal trials, that an accused can decide whether or not to give evidence.

Given how significant the changes are, without an associated comprehensive education program, these reforms are likely to have unintended consequences.