The new model means a person must do or say something to affirm consent before sex occurs. In New Zealand, laws governing consent only stipulate when you can’t actually give consent, like if you’re threatened or unconscious. 

Announced on Tuesday May 25, the New South Wales (NSW) reforms specify that:

  • A person does not consent to sexual activity unless they said or did something to communicate consent
  • An accused person’s belief in consent will not be reasonable in the circumstances unless they said or did something to ascertain consent.

The changes come after a report by the NSW Law Reform Commission (LRC) in November, which recommended changes to the NSW Crimes Act and Criminal Procedure Act to set clearer standards for sexual activity.

“This means we will have an affirmative model of consent, which will address issues that have arisen in sexual offence trials about whether an accused’s belief that consent existed was actually reasonable,” said NSW Attorney General Mark Speakman in a press release.

“No one should assume someone is saying ‘yes’ just because they don’t say ‘no’ or don’t resist physically. Steps should be taken to make sure all parties are consenting,” he said.

In New Zealand, the laws under our Crimes Act outline a number examples where someone does not give consent, including:

  • When a person doesn’t protest or offer any physical resistance
  • When a person is being forced, threatened, or fears force will be used against them
  • If a person is asleep or unconscious 
  • If a person is affected by alcohol or another drug which stops them from consenting to or refusing sexual activity
  • If a person is impaired by an intellectual, mental or physical condition which stops them from consenting to or refusing sexual activity
  • If a person is mistaken about who the other person is
  • If a person allows the sexual activity because they are mistaken about its nature and quality

The Act also says these examples do not limit the circumstances where a person gives consent, meaning some additional circumstances may apply.

“No law can ever erase the trauma of sexual assault, but we can send the message that survivors’ calls for reform have been heard,” said Attorney General Speakman.

A Bill is due to be introduced into NSW parliament later this year to bring the reforms into effect.


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