Sexual consent

Consent laws in NSW

In NSW, consent is a fundamental part of sexual offence law. A sexual offence occurs when someone does not consent to a sexual act, including sexual intercourse or sexual touching.

A person consents to a sexual activity if, at the time of the sexual activity, they freely and voluntarily agree to the sexual activity.

Consent must be present every time, including for the duration of any sexual act. Consent to one act does not mean consent is given to any other act. Consent to a sexual act with one person does not mean consent is given to a sexual act with a different person, or with the same person on a different occasion. Consent can be withdrawn at any time. 

A person must say or do something to communicate consent. Consent can be communicated by words or gestures.

The law recognises some situations where there is no consent, including if the person:

• is unconscious
• is asleep
• is so affected by drugs and alcohol that they are incapable of consenting
• participates in the sexual activity because of force, the fear of force, or the fear of serious harm to themselves or someone else, or because they are, intimidated or coerced into giving consent
• is tricked into participating by serious fraud or is incapable of consenting because of, for example, a cognitive impairment.

In criminal proceedings for sexual offences, the prosecution must prove beyond reasonable doubt that the complainant did not consent to the sexual activity and that the accused person knew that there was no consent. An accused person is taken to know there was no consent if:

• they had actual knowledge there was no consent
• they were reckless as to the issue of consent
• any belief the accused person had that the other person consented was not reasonable in the circumstances.

A belief in consent is not reasonable if the accused person did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person was consenting. There is an exception to this requirement if an accused person has a significant mental health or cognitive impairment.

New laws about consent commenced on 1 June 2022. Consent in relation to sexual offences is now governed by Part 3, Division 10, Subdivision 1A of the Crimes Act 1900. The new subdivision applies to the offences of ‘sexual act’, ‘sexual touching’ and ‘sexual assault’ (and their aggravated versions).

Making sure you have another person’s consent is an ongoing process of communication. The NSW Government’s Make No Doubt campaign encourages positive conversations about sexual consent.