Surveys have found that half the population of Australia is confused about the new sexual consent laws and men in particular find it difficult to understand exactly when and how to ask for consent.
Government campaign to explain legal requirements
Now the federal government has launched a $40 million 12-month campaign across media to explain the legal requirement in nearly all states to obtain consent before engaging in a sex act. (Please see New campaign encourages respectful relationships across Australia, Ministers for the Department of Social Services, 26 May 2024.)
Aiming to help reduce the incidence of sexual violence in Australia, the campaign stresses that sexual activity requiring consent includes touching someone in a sexual way, sharing sexual images, online sexual activities and sexual intercourse.
Government website debunks common myths
People are directed to a new website, Consent Can't Wait, with questions and answers that debunk commonly held myths, such as whether a kiss indicates a willingness to go further. It says just because a person doesn't say no or doesn't resist, it doesn't mean they consent.
"Silence is never an indication of consent. Signs of physical arousal do not mean there is consent," the government's consent.gov.au website says. "Sexual consent is a free, voluntary and informed agreement between people to participate in a sexual act."
"Sex partners need to actively say or do something to check if their partner wants to take part in a sexual activity. Consent is only present when all people genuinely, enthusiastically, and without hesitation want to engage in sexual activity. Agreeing to a specific sex act doesn't mean agreeing to other kinds of sexual act. Everyone must be genuinely sure, willing, and know what they are agreeing to. Consent is required every time, whether on a first date or in a long-term relationship."
"Consent can be withdrawn at any time. There is no such thing as a 'point of no return.' Everyone involved in a sexual activity needs to be able to consent or communicate that they don't want to go further. This means those who are underage, heavily affected by drugs or alcohol, or people who are unconscious or incapacitated, cannot consent."
Campaign follows horrific sexual violence statistics
The campaign follows horrific revelations of violence against women, with one in five reporting experiencing sexual violence since the age of 15, as do one in 16 men, and with teenagers aged 15 to 19 being the most common assault victims. (Please see 'Parents need to step up': Labor to launch $40m sexual consent campaign to combat 'confusion', The Guardian, 26 May 2024.)
The latest study from the NSW Bureau of Crime Statistics found only seven per cent of sexual assaults reported to police end up with a guilty verdict in court. Only 15 per cent of sexual assaults reported to police result in charges being laid, and of those cases that do go to court, fewer than half are proven. (Please see Only 7% of sexual assaults reported to NSW police result in a guilty outcome in court, NSW Bureau of Crime Statistics and Research, 29 May 2024.)
Legal definitions of sex offences in NSW
In NSW the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 defines consent as a free and voluntary agreement "at the time of the act". It must be immediate and for each sex act, and can't be presumed based on clothing, behaviour or previous encounters.
For someone to be found guilty of a sexual offence, two criteria usually need to be proven beyond reasonable doubt by the prosecution – that one person did not consent, and that the other person was reckless in considering whether consent was given.
There is no discussion, yet, on whether a definition of "informed consent", similar to the medical process of giving information to a patient regarding an operation, might evolve from case law or legislative amendment.
Some form of written consent has been mooted in other jurisdictions, often regarding what is described as "transactional consent", such as in a brothel, licenced or unlicenced.
It is likely there will be cases on novel situations that will have to be resolved in court.
Legal definitions of sex offences are contained in the NSW Crimes Act 1900. Section 61HA defines sexual intercourse as penetrating any part of the body of another person without consent. Section 61HI defines consent.
The penalty for sexual assault under section 61I of the NSW Crimes Act is up to 14 years in jail.
John Gooley
Criminal law
Stacks Collins Thompson
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.