What defines 'consent' in NSW?

Published 19 Jul 2018

Having sex in NSW means you need to ensure you do so safely within the legal bounds of what constitutes a consenting sexual relationship. 'Consent' is a term applicable in a precise series of scenarios, and failing to give and receive consent before engaging in sexual relations can lead to criminal charges, fines or a conviction. Let's take a look at what defines consent in NSW.

What is consent?
In NSW, consent is the act of freely and knowingly agreeing to engage in sexual activity. It's important to note that the person giving consent must have the capacity to do so. This means if the person is unconscious, asleep, drunk or on drugs, they don't have the capacity to understand the situation accurately. If you engage in sexual activity with a person who isn't able to consent, this is classed as sexual assault and is illegal.

Consent also means freely choosing to a sexual relationship. If someone is lied to or tricked into a sexual act, this doesn't constitute freely-offered consent. Similarly, if someone is manipulated, threatened or physical assaulted into performing any sexual act, this counts as sexual assault and is punishable with a criminal conviction.

Who can give sexual consent?
As mentioned before, any sexual partner has to knowingly and freely consent to any activity taking place. However, it's also vital to know that the legal age of consent in NSW is 16. Anyone under the age of 16 cannot give consent for any sexual relationship.

Similarly, if you have a cognitive impairment, such as lowered memory or thinking skills, giving consent is a tricky area of sexual assault law. Even if both parties consent to a sexual relationship, it can still be classed as illegal if there is any doubt over the impaired person's ability to comprehend the details of the situation.

How do you know when consent isn't given?
Consent clearly isn't given if someone verbally or physically rejects any sexual advances by yelling 'stop!' or pushing someone away. However, there is more to consent other than clear rejection:

  • If someone is scared into silence, a sexual act can still be classed as assault. A lack of response doesn't constitute consent.
  • If you are in an ongoing sexual relationship or de facto relationship but you don't consent to sex on a given occasion, this is still sexual assault.
  • If consent is given but the victim then changes their mind, that's not a defence for an offender. Consent at one point doesn't close the door on sexual assault charges.
    Tackling sexual assault in NSW

Less than 20 per cent of people who experience sexual assault will report the crime to police, according to the NSW Rape Crisis Centre. If you think you've been a victim of a sexual crime, stand up for your rights by contacting Gerard Malouf & Partners Sexual Assault Lawyers for help.