Why NSW Is Changing What It Means To Consent
NSW has moved a step closer to having a new model of consent become law.
It’s called ‘affirmative consent’, and it’s just been introduced in parliament this week as part of a historic overhaul of sexual assault laws.
If it passes through parliament, it would be a huge win for survivors.
Affirmative consent essentially means that all parties must explicitly communicate through words or actions that they agree to engaging in sexual acts.
Consent is given before and should be confirmed without a doubt, and voluntarily.
It can also be withdrawn at any time and, most importantly, intoxication doesn’t mean you don’t seek it out.
As Attorney General and Minister for Prevention of Domestic and Sexual Violence Mark Speakman put it, “if you want to have sex with someone, then you need to do or say something to find out they want to have sex with you too”.
It’s that simple.
What Exactly Is The New Consent Bill?
The new bill outlines that people need to take active steps to determine whether another person consents.
Speakman, who introduced the bill, pointed out that this doesn’t mean people need a written or video agreement of the consent.
And it’s not going to mean sex can’t be spontaneous anymore.
It just basically means everyone is on the page, and clear that they’re both wanting to have sex.
If this bill becomes law, it’ll more clearly outline when a person does not given consent.
And this will hopefully address the grey areas that have cropped up in countless sexual offence trials, when accused persons have argued that they thought the other party had consented.
Under this new reform, ‘belief of consent’ will not be a reasonable defence unless an accused actually said or did something to obtain consent.
How Have People Reacted?
Speakman tweeted that, “It’s time for the law to catchup with common human decency and common sense…Mr acting speaker I commend the bill to the house”.
⚖️Today I intro’d a bill into @NSWParlLA to bring common decency to our sexual assault laws.
⚖️Consent to sexual activity should not be presumed; it should be communicated.
🙏Thanks to @SaxonAdair for advocating #affirmativeconsent + @NSWLawReform for its important work. 1/2 pic.twitter.com/GemEasZ7fy
— 💉💉Mark Speakman (@MarkSpeakman) October 20, 2021
Saxon Mullins is a sexual assault survivor, who went through two criminal trials and appeals after she was allegedly assaulted in 2013.
She has described the reforms as a “momentous win for victim-survivors… who understand first-hand the difference this bill can make.”
She even tweeted her emotion at hearing consent laws being described as ‘common sense’ by Speakman in NSW parliament.
Hearing affirmative consent laws described as common sense in the NSW Parliament has me all kinds of emotional.
Silence does not equal consent. Fear does not equal consent.
— Saxon Mullins (@SaxonAdair) October 20, 2021
These reforms are largely thanks to years of advocacy by Saxon, alongside other experts and advocates.
The NSW reforms are expected to become law in mid-2022, and experts have pointed out that the rest of Australia needs to review its own sexual assault laws.
Tasmania and Victoria do currently have similar communicative models for consent, but some experts have called the models “unworkable”.
Queensland implemented new consent laws this year, but they didn’t include an affirmative consent model.