Affirmative consent in NSW after the 2022 reforms.

The reforms that commenced on 1 June 2022 changed the centre of the consent inquiry in New South Wales sexual-offence trials. The complainant's state of mind is no longer the only question. The accused must now have said or done something, within a reasonable time before or at the time of the activity, to ascertain that the other person consented. A defendant's belief that the other person was consenting is no longer reasonable, for the purposes of the statute, if the defendant did not take that step. This note explains how that change is structured under sections 61HF to 61HK of the Crimes Act 1900 (NSW), the work the prosecution must now do, and the work the defence must now do in response.

Why the reforms exist.

Before 1 June 2022 the test for consent in NSW criminal trials sat in section 61HE of the Crimes Act 1900. The complainant was taken not to consent if she or he did not freely and voluntarily agree. The accused was taken to have known there was no consent if the accused knew of the lack of consent, was reckless as to whether the other person consented, or had no reasonable grounds for believing the other person was consenting. The complaint that led to the reforms was that the test, as applied, allowed defendants to fall back on assumption: an honest belief in consent, even without any step taken to confirm it, could supply reasonable grounds.

The Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW) repealed section 61HE and replaced it with a new subdivision, sections 61HF to 61HK. The new subdivision commenced on 1 June 2022 and applies to offences committed on and from that date. Older offences continue to be governed by section 61HE as it stood at the time of the alleged offence; the work the defence does in an older matter is the work that the older regime requires. The 2022 reforms are forward-looking.

The new structure in five short propositions.

The new subdivision is built around five short propositions.

1. Consent is the free and voluntary agreement to sexual activity, at the time of the sexual activity. Section 61HI(1) puts the question in the present tense and tied to the activity in question. A complainant's earlier consent to a different activity, or to the same activity on an earlier occasion, is not consent to the activity at the relevant time.
2. Consent can be withdrawn at any time. Section 61HI(2) recognises that consent may be withdrawn by words or conduct, and sexual activity that continues after consent has been withdrawn is sexual activity without consent.
3. The list of circumstances in which consent is absent is not exhaustive. Section 61HJ lists circumstances in which there is no consent: where the person does not say or do anything to communicate consent, where the person is asleep or unconscious, where the person consents because of force or fear of force, where the person consents because of coercion, blackmail or intimidation, where the person is unlawfully detained, where the person is so intoxicated that they cannot consent, where the person consents because of a mistaken belief about the nature or purpose of the activity or about the identity of the other party, and so on. The section is to be read as a non-exhaustive list; consent can be absent on facts not listed in the section.
4. Knowledge of non-consent now turns on what the accused said or did. Section 61HK sets out the knowledge element. The accused knew of the lack of consent if the accused actually knew the other person did not consent, if the accused was reckless as to whether the other person consented, or if any belief held by the accused that the other person consented was not reasonable in the circumstances.
5. A belief in consent is not reasonable if the accused did not say or do anything to find out. This is the affirmative-consent reform in its narrowest form. Section 61HK(2) provides that a belief that the other person consented is not, for the purposes of the section, a reasonable belief if the accused 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 consented. There are limited exceptions where the accused had a cognitive impairment or a mental health impairment that was a substantial cause of the failure to take the step.

What the prosecution must prove.

The architecture has not, in form, changed. The prosecution still has to prove sexual activity, absence of consent, and knowledge of the absence of consent, all beyond reasonable doubt. What has changed is the content of the third element.

On the new test, the prosecution can establish knowledge by proving any of three things.

• Actual knowledge. Direct evidence that the accused knew the complainant did not consent. This is rare. It usually comes from the accused's own words, in messages or in the recorded interview the accused (usually) declined to participate in.
• Recklessness. Evidence that the accused was aware of, but indifferent to, the possibility that the complainant did not consent. Recklessness is established where the accused proceeded with the activity knowing the risk of non-consent and being indifferent to it.
• Unreasonable belief. Evidence that the accused's belief in consent was not, in the circumstances, reasonable. This is where the affirmative-consent reform does most of its work. The court is told to consider what the accused said or did, within a reasonable time of the activity, to find out. If the accused did nothing, the belief is not reasonable as a matter of statute. The defence cannot rely on assumption.

The third limb has changed the trial. Cross-examination of the accused on what the accused said or did is now central, where it was once peripheral. The accused who relies on consent must be prepared to give an account of the steps the accused took. A defence run on the basis that the complainant did not say no will not succeed under the new framework.

What the defence does in response.

The work the defence does at trial under the new framework breaks into three categories.

The factual case on consent. The first inquiry is whether the complainant in fact consented. Where the answer is plainly yes (a long relationship, contemporaneous messages, no contemporaneous complaint, no evidence of force or fear), the prosecution case is weak from the start. The complainant's evidence carries less of the work; the case turns on the surrounding material. The brief is read for messages, for video, for the complainant's account given at the time, and for any indication of inconsistency in the complainant's account given over time.

The factual case on what the accused said and did. Where consent is in issue, the defence's task on the new knowledge element is to identify the things the accused said and did, contemporaneous with the activity, that go to belief in consent. Verbal exchanges, physical responses, and the sequence of events in the lead-up are all in scope. The defence is no longer running an inference case from a single set of facts; the defence is running a case on a specific set of communications and conduct.

The instruction to the jury. The trial judge is required to direct the jury on the new test. The standard directions in the New South Wales Criminal Trial Courts Bench Book reflect the post-1 June 2022 framework. The defence must be alert to ensure that any older direction (referring to "honest belief" without the reasonableness limb) is not given by inadvertence.

The accused who is asked for an interview.

The 2022 reforms have, in practice, increased the importance of the decision whether to participate in a recorded interview. The accused who declines an interview retains the right to silence; the jury cannot draw an adverse inference from that decision in the way the prosecution might wish. The accused who participates in an interview locks in a version. The version becomes the foundation of the cross-examination of every defence witness later called.

For most accused persons in NSW sexual-offence matters the right answer to a request for an interview is no. The narrow section 89A exception for serious indictable offences, where a lawyer is in the room and a special caution has been given, is the only setting in which participation in an interview is even a strategic question. Even there, the answer is usually no. Our note on declining the ERISP sets out the framework; the sexual-offence context does not change the framework.

Some hard cases.

The 2022 reforms are not, on their face, a finding of guilt. They are a re-pointing of the inquiry. There are real cases in which the steps the accused took to find out were specific, contemporaneous, and reasonable. Those cases are tried under the new framework as they were under the old, and they are won.

The hard cases sit at three intersections. First, intoxication. A defendant who was substantially intoxicated may have a more difficult case on what the defendant said or did to find out, because the defendant's memory and the defendant's behaviour at the time are both at issue. Second, asymmetric communication. Where the activity unfolded over a period in which messages, calls and physical interaction were mixed, the defence has more material to work with on the "said or did" question. Where the activity unfolded in silence after a single ambiguous step, the defence has less. Third, the complainant's account at the time. Where there is contemporaneous complaint, the case is harder. Where there is none, the case is easier. The defence work begins with the timeline.

Older matters.

The reforms apply to offences committed on and from 1 June 2022. An allegation of sexual activity before that date is tried under section 61HE of the Crimes Act 1900 (NSW) as it then stood. The contours of the older test, in particular the residual scope for an honest-belief defence, remain available in those matters. Where the alleged conduct straddles the commencement date, the prosecution will usually plead in the alternative; the defence work is to identify the date as early as possible and to ensure that the directions to the jury reflect the right regime for each charge.

The maximum penalties have not changed.

The reforms changed the content of the consent inquiry. They did not change the maximum penalties for the substantive offences. Sexual assault under section 61I of the Crimes Act 1900 (NSW) remains a maximum of 14 years and a standard non-parole period of 7 years. Aggravated sexual assault under section 61J carries a maximum of 20 years and a standard non-parole period of 10 years. Aggravated sexual assault in company under section 61JA carries a maximum of life imprisonment and a standard non-parole period of 15 years. Sexual touching offences under section 61KC and aggravated sexual touching under section 61KD continue at 5 and 7 years respectively. All of these offences are strictly indictable; sexual touching is a Table 1 offence in Schedule 1 of the Criminal Procedure Act 1986 (NSW), and the more serious offences are tried on indictment.

One last note.

The 2022 reforms have not changed the work a careful defence does in a NSW sexual-offence trial. They have changed where the work is concentrated. The prosecution case now turns on whether the accused said or did anything to find out. The defence case is, more often, built around what the accused did at the time and what the surrounding material shows about the activity. The accused who appears polite, sober and articulate at trial does not save the case if the cross-examination on the "said or did" question is met with silence. The accused who has prepared the case from the day the allegation arose, with a lawyer reading the brief as it emerges, has the best chance of putting the strongest version of the case in evidence.

The developing appellate authority.

The NSW Court of Criminal Appeal has begun to interpret the new sections in concrete fact patterns. Two decisions are worth noting.

In Slater v R [2024] NSWCCA 210, the CCA addressed the recklessness limb under section 61HK (the limb that carries forward the recklessness concept from the former section 61HE(3)(b)). The court confirmed that recklessness is made out where the accused realised the possibility of no consent and proceeded regardless, or did not consider consent at all. The decision rejected the suggestion of a separate intermediate category of recklessness based on a reasonable possibility of belief in consent.

In Poveda v R [2025] NSWCCA 174, the CCA considered the operation of section 61HK(5) (formerly section 61HE(4)(b)), addressing the role of an accused's self-induced intoxication when assessing knowledge of the lack of consent. The decision sets out the directions the trial court should give to the jury about disregarding self-induced intoxication when considering the accused's knowledge of the absence of consent.

The appellate authority will continue to develop. The architecture of the new subdivision is structurally different from the section 61HE regime it replaced; the appellate authority interpreting the old subdivision is of limited use in the new one. The defence work in any current matter accordingly turns on the section text and on the new line of NSWCCA decisions as they emerge.

If you have been told that an allegation has been made, the first call is to a lawyer. The second is not to the complainant.

This note is general information about the affirmative-consent reforms in New South Wales. It is not legal advice for any particular case. The Crimes Act 1900 (NSW) and the case law on the section 61HI to 61HK framework will continue to develop. For advice on a real matter, contact us through our contact page or phone 0421 717 019. All communications with our firm in sexual-offence matters are treated with the discretion the subject matter requires.

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