From Regret to Allegation: Are We Criminalising Bad Sex?

In a legal system designed to protect victims of sexual violence, a new and troubling trend is emerging: allegations of sexual assault being made in the aftermath of consensual but regretted encounters. With the implementation of affirmative consent laws in New South Wales, the question arises – are we beginning to criminalise bad sex? And what does this mean for the legal rights of the accused? At National Criminal Lawyers®, we’ve defended many clients facing serious charges based on misunderstood, miscommunicated or misremembered interactions.

The Legal Shift: Affirmative Consent in NSW

In 2022, NSW introduced landmark affirmative consent reforms. These laws require a person to take active steps to ensure their partner consents to sexual activity. This means that silence, intoxication, or passive behaviour is no longer enough. While the reforms aim to support survivors and modernise outdated legal standards, critics argue they shift the burden of proof unfairly onto the accused.

Under section 61 of the Crimes Act 1900 (NSW), a person does not consent if they do not say or do something to affirm their willingness. This legal shift means many accusations may stem not from force or coercion – but from confusion, alcohol use, and regret.

A Real Case: R v A

Mr. A, a 26-year-old university student, met Ms. S at a university party. They had known each other casually through mutual friends and flirted on and off over several weeks. After several drinks, they went back to Ms. S’s place and had sex. The next day, Ms. S felt embarrassed and conflicted and argued to the police that Mr. A “violated her”. She spoke with friends and, over time, began to question whether she had given proper consent. Two weeks later, Mr. A was contacted by police and arrested.

He was charged with sexual touching without consent in NSW and other sexual assault charges NSW. The Crown’s case rested solely on Ms.S retrospective account of her emotional state and the assertion that Mr. A should have known she wasn’t in a position to consent. The Crown also relied on what is referred to as “complaint evidence”, which was the version Ms. S provided to her close friend shortly after the said allegations were said to have taken place.

Cross-Examination Reveals the Truth

At trial, National Criminal Lawyers® cross-examined Ms.S, with Michael Moussa leading the defence. The turning point came when she was asked the following:

Counsel: Did you ever say ‘no’ or ask Mr. A to stop?
Ms. S: No… I didn’t say those exact words.

Counsel: Did you physically resist or attempt to leave?
Ms. S: No. I was just lying there.

Counsel: And the next morning, you hugged him goodbye?
Ms. S: Yes, I did.

Counsel: You then texted him later that day, saying, “I had a nice time, hope you got home safe,” correct?
Ms. S: Yes, but I felt differently after talking to my friends.

Counsel: So your recollection and feelings changed after other people gave their opinions?
Ms. S: I guess… yes.”

The jury found Mr. A not guilty. It was clear to the court that the allegation stemmed not from coercion, but emotional regret influenced by third-party opinions.

The Grey Area Between Consent and Regret

Affirmative consent is a positive evolution of sexual ethics. But the legal system must also guard against overreach – where subjective feelings of shame or confusion are used to label someone a criminal. As defence lawyers, we don’t question the complainant’s emotional experience. But we do challenge whether it constitutes a criminal act. Said differently, we are focused on arguing that the Crown has not proven its case to the required threshold of beyond reasonable doubt.

What to Do If You’re Accused After a Consensual Encounter

If you are falsely accused after a consensual experience, take these steps immediately:

• Do not apologise or try to explain yourself to the complainant.
• Do not delete any messages or evidence.
• Contact a Sydney sexual assault criminal lawyer before speaking with police.
• Collect any written communication that may support your version of events.

Defending Your Future

The impact of being falsely accused can be devastating. It can ruin your reputation, career, and relationships. It can also see you behind bars.  National Criminal Lawyers® provides the best sexual offence defence lawyers in Sydney to protect your rights and present the facts clearly and fairly.

Why Choose National Criminal Lawyers®

We specialise in complex allegations involving indecent assault charges in Sydney and consent disputes. Our firm offers a free consultation sexual assault lawyer Sydney to assess your case. Michael Moussa, an award-winning solicitor in sexual assault matters, brings decades of experience and precision to your defence.

Final Thoughts

As NSW continues to modernise consent law, the criminal justice system must balance survivor protection with procedural fairness. At National Criminal Lawyers®, we stand for both: justice for the wrongly accused and truth in every allegation. If you or someone you know is facing a similar situation, call us now on 1800 CRIM LAW.