Introduction: Understanding the Shift in NSW Consent Laws

Consent has always been a central issue in sexual offence cases. However, recent changes in New South Wales (NSW) law have introduced a clearer, stronger standard known as affirmative consent.

In 2025, these reforms have profoundly changed how consent is defined, how it must be communicated, and how it is assessed in legal proceedings. At Jones Hardy Law, we believe it is vital for every individual — whether facing allegations or seeking to protect themselves — to understand exactly what affirmative consent means under NSW law.

This article explains the law in plain English, outlines the risks of misunderstanding consent, and offers practical advice if you find yourself involved in a legal matter where consent is an issue.

What Is Affirmative Consent?

Affirmative consent means that consent must be actively communicated — it is not assumed or implied.

Under NSW’s new laws:

• Consent requires a clear, voluntary, and positive indication (through words or actions) that a person agrees to engage in a sexual act.
  
• Silence, lack of resistance, or previous history between parties is not enough to infer consent.
  
• Each party must continually seek and confirm consent, particularly if the nature or intensity of the act changes.
  

Affirmative consent shifts the focus to ensuring both parties actively participate in establishing consent rather than relying on assumptions.

Key Changes Introduced by the New Consent Laws

Several important legal principles now apply:

1. Positive Confirmation Is Required

A person must do or say something to communicate consent. It is not enough for someone to simply go along with something without protest.

2. Reasonable Steps Must Be Taken

A person seeking to rely on consent must have taken reasonable steps to ensure the other person consented. This means actively checking in, not merely assuming.

3. Consent Can Be Withdrawn

Consent can be withdrawn at any time. Continuing after someone withdraws consent can lead to serious criminal charges.

4. Intoxication Limits Capacity

If a person is significantly affected by alcohol or drugs, their ability to give consent may be impaired — and relying on their apparent consent may not be legally valid.

The Legal Definition of Consent: Section 61HE of the Crimes Act 1900 (NSW)

Section 61HE now clearly states:

• Consent means free and voluntary agreement.
  
• Consent is not obtained if a person is:
  
  • Forced, threatened, intimidated, or coerced.
    
  • Deceived about the nature of the act.
    
  • Unable to consent due to intoxication, unconsciousness, or cognitive impairment.
    

The Act also reinforces that consent is specific to each act and must be ongoing.

Practical Examples: Affirmative Consent in Action

To better understand the concept, consider the following:

Affirmative consent:

• One partner verbally says “yes” when asked if they want to proceed.
  
• A person actively and enthusiastically engages in the activity and responds positively when checked in with.
  

Not affirmative consent:

• Assuming that because someone didn’t say “no,” they meant “yes.”
  
• Relying on past intimacy as permission for future acts without asking.
  
• Proceeding despite visible hesitation or silence.
  

Why This Change Matters: Shifting Legal Assumptions

Historically, courts sometimes grappled with whether non-verbal cues or prior relationships implied consent.

Now, the law is clear:

• No one can assume consent based on circumstances.
  
• Taking active steps to confirm consent is expected and required.
  
• Failure to do so could result in being charged with serious offences like sexual assault.
  

This protects both parties — encouraging clearer communication and reducing misunderstandings.

Defending Allegations Under the New Consent Laws

If you are accused of a sexual offence under the affirmative consent framework, the stakes are extremely high.

Possible defences may include:

• Demonstrating that you took reasonable steps to confirm consent.
  
• Showing that consent was clearly and voluntarily given.
  
• Arguing that you had a reasonable belief in consent based on clear communication.
  

However, under the new laws, it is no longer sufficient to simply say, “I thought they consented.” You must be able to point to actions, words, or behaviours that reasonably indicated consent.

At Jones Hardy Law, we can thoroughly review the circumstances, challenge assumptions, and build the strongest possible defence.

Important Legal Consequences for Failing to Meet Affirmative Consent Standards

Sexual offences are among the most serious criminal charges in NSW. Consequences include:

• Significant periods of imprisonment.
  
• Lifetime listing on the Sex Offenders Register.
  
• Permanent criminal record, affecting employment, travel, and personal relationships.
  
• Serious social stigma even in the event of an acquittal.
  

Understanding how affirmative consent laws work — and seeking legal representation early — is critical to protecting your rights and your future.

Practical Advice: Protecting Yourself Under the New Laws

If you are sexually active, here are essential tips:

• Always seek clear verbal or non-verbal affirmation before engaging in any sexual activity.
  
• Communicate openly — ask, “Is this okay?” or “Do you want to continue?”
  
• Respect hesitation or silence — if in doubt, stop.
  
• Be aware of intoxication — if someone appears impaired, reconsider proceeding.
  
• Document consent if appropriate — in complex situations (e.g., casual encounters where misunderstandings could arise), communication by text before meeting up may assist later.
  

Clear, active communication is your best protection — legally and ethically.

How Affirmative Consent Affects Ongoing Relationships

Consent is required every time — even in long-term relationships.

Being married, dating, or having previously been intimate does not automatically mean you have ongoing consent for future sexual activity. Respect and communication are necessary at every stage.

Conclusion: Affirmative Consent Is About Mutual Respect — and Legal Protection

The move to affirmative consent laws in NSW signals a broader societal shift: valuing respect, communication, and responsibility.

Understanding your legal obligations is crucial. Whether you need advice because you are worried about a situation, or if you are facing allegations under the new laws, Jones Hardy Law is ready to support you with expert, compassionate, and strategic legal representation.

Your future deserves careful protection — especially when the consequences are so serious.
If you are facing allegations related to consent issues or simply need advice about your rights, visit JonesHardyLaw.com.au to book a free consultation today. Clarity, defence, and support are only a call away.

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Sydney NSW 2000

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