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In New South Wales (NSW), a recent law has been introduced that mandates individuals to explicitly obtain and give consent before engaging in any sexual activity. These affirmative consent laws were enacted on 1 June 2022, following their approval by the NSW parliament in November 2021.
According to the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021, consent is defined as a voluntary and free agreement “at the time of the act.”
The phrase “at the time of the act” carries significant importance. It emphasises that consent provided hours earlier is not sufficient, and consent should not be presumed based on past sexual encounters.
The primary purpose of this new law is to establish the notion that consent can be withdrawn, and agreeing to one sexual act does not imply consent to any other sexual acts.
The new law explicitly states that sexual consent necessitates ongoing and mutual communication, and it cannot be assumed. However, the government clarified that it does not alter anything for individuals who are already engaging in consensual sexual activity.
Under the new law, a person is not considered to have consented to a sexual act unless they expressly or demonstrably express consent. In other words, consent cannot be inferred merely from the absence of a refusal or resistance to an advance.
The law further specifies that individuals cannot provide consent if they are heavily under the influence of drugs or alcohol, unconscious or asleep, or manipulated or threatened into giving consent.
Under the newly enacted laws, individuals charged with sexual assault are now obligated to demonstrate that they held a reasonable belief that consent was given and that they actively took steps to verify the presence of consent.
The ramifications of these novel consent laws on the handling of sex offences within the justice system are yet to be fully comprehended.
One of the challenges lies in ascertaining the sequence of events between two individuals when they present conflicting accounts, particularly if consent is expected to be sought for each specific sexual act.
For instance, if one person appears to have given consent for one act, the court may encounter the intricate task of determining whether the other person is culpable because they did not explicitly seek consent for another form of sexual activity.
The consequences of engaging in sexual activity without consent are severe, as stipulated under the Crimes Act 1900, with a maximum sentence of up to 14 years in prison.
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