Consent, Coercion, and Communication: The New Age of Sexual Assault Law in NSW

In 2022, NSW overhauled its sexual assault laws to reflect a simple but powerful idea: consent must be active and continuous. The Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW) fundamentally changed how courts interpret consent and mistake.

At National Criminal Lawyers®, our sexual assault defence lawyers in Sydney and Parramatta have defended many accused caught in these shifting standards. This article explores the new law, key cases, and how communication, or its absence, determines guilt.

The Law: Section 61HE Crimes Act 1900 (NSW)

Under s 61HE, a person consents to sexual activity only if they:

• Freely and voluntarily agree;
• Have capacity to consent; and
• Continue to consent throughout the act.

The section also provides situations without consent, such as coercion, intimidation, unconsciousness, or intoxication.

Crucially, under s 61HK, a person “does not consent” if they do not say or do anything to indicate agreement. This creates a positive obligation to seek and confirm consent.

The “Affirmative Consent” Standard

The reforms replaced the old “reasonable belief” test with a stricter duty:

“An accused must have taken steps — through words or actions — to ascertain consent.”

This means silence, passivity, or assumption is not enough.

In R v Lazarus [2017] NSWCCA 279, the accused’s belief in consent was found unreasonable because he did not take active steps to confirm it.

Judicial Interpretation and Case Law

R v Kitchener [2018] NSWCCA 99

Clarified that consent cannot be inferred from prior sexual history; each act requires its own agreement.

R v Dean [2022] NSWDC 430

One of the first cases post-reform. The court held that text messages and timing of replies could establish implied non-consent, reinforcing the need for verbal or physical confirmation.

R v Aiken [2019] NSWCCA 211

Emphasised that intoxication complicates capacity, even “apparent consent” may be invalid if the complainant was significantly impaired.

The Mistaken Belief Defence

Under s 61HJ, an accused is not guilty if they honestly and reasonably believed consent existed, but only if they took steps to confirm it. This codifies the Lazarus principle: “assumption is not reasonableness.”

Courts now look for tangible evidence, verbal inquiry, recorded communication, post-incident behaviour, to judge the belief’s credibility.

Sentencing and Penalties

Sexual assault (s 61I) carries a maximum penalty of 14 years imprisonment. Aggravated offences (s 61J) rise to 20 years.

Sentencing considers:

• degree of coercion or violence;
• age and vulnerability of victim;
• breach of trust;
• remorse or lack thereof;
• mental health and rehabilitation prospects.

In R v Wood [2023] NSWCCA 21, an early guilty plea reduced the head sentence from 9 to 6 years due to contrition and treatment participation.

Practical Realities: Communication as Defence

In the digital age, consent evidence often lies in text messages, Snapchat, and social media. Defence teams at NCL routinely use metadata and chat logs to demonstrate prior or ongoing consent.

However, defendants must exercise caution, deleting or editing messages can be construed as consciousness of guilt (R v Guo [2020]).

The Role of Defence Lawyers

At National Criminal Lawyers®, our defence strategy in sexual assault matters involves:

• Early forensic briefing and digital evidence preservation;
• Challenging police interview conduct and complainant inconsistencies;
• Expert psychological testimony on perception, intoxication, and trauma;
• Preparing the accused for cross-examination under strict s 293 Evidence Act limits.

We focus on ensuring that the court sees the whole context, not just the accusation.

Broader Implications: Culture, Law, and Communication

The 2021 reforms reflect a social shift, from implied consent to affirmative communication. Courts now expect adults to verbalise intent clearly.

This may protect victims, but it also raises questions about proof beyond reasonable doubt. Defence lawyers argue that absence of explicit words shouldn’t automatically equate to guilt, especially when both parties are intoxicated.

Ultimately, NSW law demands clarity, respect, and mutual understanding, and punishes those who assume instead of asking.

Conclusion: Clarity is Consent

Consent is not a guess. It’s a conversation.

If you’re accused of sexual assault or facing investigation, you need expert defence that understands both the law and the human complexities behind it.

📞 Call 1800 CRIM LAW to speak with National Criminal Lawyers®, Sydney’s leading sexual assault and consent law experts.

We defend your rights, and your reputation.