Sexual Consent Laws NSW
TikTok Sexual Consent Series
Understanding the laws around sexual consent is critical — especially with the recent reforms in New South Wales that place greater legal responsibility on individuals to ensure clear, voluntary agreement. Whether you’re dating, in a relationship, or socialising after a night out, knowing what the law expects of you can help you avoid devastating criminal charges.
At National Criminal Lawyers®, we specialise in defending clients accused of sexual offences, including matters where consent is in question. Our detailed guide on Sexual Consent Laws in NSW breaks down everything you need to know — from affirmative consent to intoxication, false allegations, and what happens in court.
What is a sexual offence in NSW?
In a nutshell, a sex offence is essentially where one person does an act to the other person of a sexual nature and no consent was provided.
A simple example might look like this – Fred and Belinda met each other at a bar last Saturday night. They got talking and had a few drinks together. Fred decided he’d grab Belinda on her breast as she attempted to walk past him. Belinda did not give Fred consent to touch her on her breast. Fred could be charged with sexual touching without consent.
This page takes you through the various charges to do with sex offences. This can be a sensitive and at times tough topic to get across. We have provided a series of blogs in case you have been charged with specific sex offences. The first blog will give you a big picture look at sex offences in NSW.
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The things you need to know about sex related charges
What are sex offences in NSW?
Sex offences in New South Wales include a range of charges such as sexual assault, sexual touching, indecent exposure, and offences involving intimate images. The legal system treats these matters seriously, with a strong emphasis on consent and protection of victims. Courts follow strict procedures and rely on detailed evidence. Common defences include lack of intent, mistaken belief in consent, and denial of the alleged conduct.
Sexual touching without consent
Sexual touching without consent is a criminal offence under section 61KC of the Crimes Act 1900 (NSW). It involves intentionally touching another person in a sexual manner without their consent and without reasonable belief in their consent. The law defines “sexual” based on the context and nature of the act, and courts consider the circumstances to determine whether the touching meets this threshold.
Strangulation
Choking, suffocation, and strangulation are offences under section 37 of the Crimes Act 1900 (NSW). These charges may arise in both domestic violence and sexual offence contexts. The offence does not require proof of injury, only that the act occurred and created fear or risk of harm. It is treated as a serious assault, often carrying significant custodial penalties.
Pornographic offences
Offences involving intimate images include recording, distributing, or threatening to distribute images without consent. These laws aim to protect personal privacy and dignity. Charges can arise from actions such as “upskirting,” sharing explicit content without permission, or making threats involving intimate material. Courts assess both the intent and the impact on the victim.
Revenge porn / Record intimate image without consent –Recording or sharing intimate images without consent is a criminal offence that includes actions such as filming private body parts or sexual activity without permission. The law requires that the person did not consent to the recording or distribution, and that the accused intended to cause harm, humiliation, or distress.
Threatening to Share Intimate Images / Revenge porn –Threatening to record or distribute intimate images is an offence under section 91R of the Crimes Act 1900 (NSW). This charge applies even if no actual recording or distribution occurs. It is enough that a threat was made with the intention to cause fear, control, or intimidation.
Affirmative consent
Affirmative consent laws in NSW require a clear, voluntary, and ongoing agreement to engage in sexual activity. Consent must be actively communicated, and silence or lack of resistance does not constitute consent. These laws emphasise the importance of mutual understanding and respect, and require reasonable steps to confirm that consent has been given.
Sexual intercourse without consent
Sexual intercourse without consent is one of the most serious criminal offences in NSW. The prosecution must prove that sexual activity occurred without the other person’s agreement and that the accused either knew there was no consent or was reckless as to whether there was consent. Defences can include mistaken belief in consent if it was reasonable in the circumstances.
Indecent exposure
Indecent exposure involves intentionally exposing oneself in a public place or in view of others with the intent to offend or cause alarm. The offence requires proof of both the act and the intent behind it. Penalties may vary depending on the nature of the act and the presence of aggravating factors.
Case studies at NCL of sexual assault, sexual touch
Recent cases demonstrate successful defence strategies against charges of sexual assault and sexual touching. Key elements include identifying weaknesses in the prosecution’s evidence, challenging the credibility of witness statements, and presenting a consistent defence based on the client’s version of events.
Main defences to DV offences
Common defences to sex-related charges include denial of the conduct, mistaken identity, lack of intent, and a genuine belief that the other person consented. Mistaken belief in consent is a particularly significant defence, but it must be shown that the belief was both honest and reasonable in the circumstances. Each defence depends heavily on the specific facts of the case.
Read our blogs on the topic…
Accused of something from thirty years ago: how historical sexual assault allegations are actually prosecuted in NSW
There is no statute of limitations on serious sexual offences in NSW. Here is how historical allegations are prosecuted, where…- Carriage Service Offences | Commonwealth Offences | Criminal Law | Cyber-Crime | Luring Offences | Offences involving Children | Offences Involving Minors | Online Offences | Sexual Offences | Stalking
Online Grooming and Undercover Police Stings in NSW: What You Need to Know
Online grooming charges under s 66EB of the Crimes Act 1900 (NSW) carry up to 15 years imprisonment. Here is… Navigating Consent and Complexity: The Case of Mr. M and a Total Jury Acquittal
NCL secured not guilty verdicts on all counts at the Downing Centre District Court after a jury trial involving serious…- Carriage Service Offences | Criminal Law | Cyber-Crime | Cyberbullying | Digital Evidence | Filming Private Acts | Image-Based Abuse | Intimate Image Offences | Sexual Offences | Tech-Facilitated Abuse
Image-based abuse charges in NSW: the law is broader than most people expect – and so are the consequences
NSW image-based abuse law covers recording, distribution and threats involving intimate images without consent. Here is what the offences actually…
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