Affirmative Sexual Consent laws. What do they mean?

Sexual consent law reforms have passed in New South Wales Parliament, and they’re being described as a major step forward in delivering better justice for sexual assault survivors.

Rape can be difficult to prosecute

Police officers and lawyers will attest to the fact that rape cases can be difficult to prosecute, for a number of reasons. But one of the key issues within previous legislation was the perceived ‘weakness’ in the laws around the issue of consent.

Under the previous Act, an offender had to have ‘reasonable grounds’ for believing the other person had consented. The new laws have addressed this issue, by specifically stating that people involved in sexual activity need to ensure they have a clear affirmative response from their partner/s indicating a willingness to participate — a spoken word, a gesture, a facial expression.

In other words, if it’s not a clear positive, ‘yes’, response, then it can be determined under these new laws that the sexual act was not consensual. A participant being too drunk is a great example of where consent has not been freely or willingly given.

Sexual consent can no longer be ‘presumed’

The laws also make it clear that a person has a right to withdraw their consent at any time. A person may consent half way through the evening, but change their mind later. A person may consent to one specific act, but not another.

This is meant to encourage couples engaging in sexual activity to make certain that their partner is comfortable and keen to proceed. It means, in effect, that sexual consent can no longer be ‘presumed’. If during a sexual encounter a person initially says yes to the sexual act(s) or activities, then later says no, consent is not being given.

This is important, because many victims ‘freeze’ as a response to unwanted, frightening, violent or threatened sexual acts. Psychologists say this is a natural brain response to danger. When humans are confronted with something terrifying, instincts will kick in and we will either do one of three things – fight (defend ourselves) flight (run), or freeze (completely shut down).

We don’t make a conscious decision in these situations — this is an automatic brain and body response.

If someone is in ‘freeze’ mode, they have not consented. No response is not consent.

Sexual partners need to communicate their desires and intentions

While couples in relationships all around Australia are probably wondering how these laws might actually work in real life, considering that sexual acts can be very spontaneous and the nature of sexual intercourse generally involves ‘multiple’ different activities, it’s crucial to remember that these are laws which legislate rape and sexual assault which has been on the rise in Australia for a number of years, along with domestic violence and sexual harassment in the workplace.

In a post #metoo environment, this is an issue that can no longer be ignored. It’s imperative that victims and survivors — the majority of whom are women — are appropriately supported by the laws, and the justice system. Rape and sexual assault are horrific, traumatic experiences that can deeply affect people for the rest of their lives.

So, while the new laws may present some ‘awkward’ moments for people hooking up for a one-night stand, or for those who are newly dating and want to take the next step, this is not necessarily a bad thing. It could actually encourage other open conversations about contraception, sexual history and sexual health too, prior to having sex, before the passion takes over.

How the laws will work in practice remains to be seen. They will come into effect early next year and then will be tested in the courts.

But what they do present right now is the opportunity for us to have conversations, particularly with our kids, about the meaning of consent and personal boundaries.

This of course, is an issue for all ages, but it disproportionately affects our young people, as evidenced by the petition launched by Chantel Contos calling for more holistic sexual consent education within the school system, and for it to be provided from an earlier age.

Her petition started when she posted a story on social media about some incidents that had occurred during her high school years. Within hours of posting she had more than 200 responses from young people with similar stories. Less than a month later her petition had been circulated widely, attracting more than 30,000 signatures and almost 5,000 testimonies.

Young people are often not mature enough to have conversations prior to sex, and they most definitely need to be aware that sexual assault includes any unwanted sexual behaviour (including touch) that makes a person feel uncomfortable, threatened or scared, or coerced.

Parents — there is a fantastic video which was produced by Thames Valley Police in the UK, which explains consent in a very simple, straightforward way.

It’s a great place to start. You can watch it here.



This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.

We service NSW, but specifically the area from Coffs Harbour to Byron BayBallina, Mullumbimby and Tweed Heads regions on the Far North NSW Coast.

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