Sexual Assault Charges: Affirmative Consent Laws

In October 2025, Gareth Ward, a former New South Wales Liberal minister and Independent Kiama MP, was sentenced to five years and nine months imprisonment for sexually abusing two young men.

Ward was found guilty of sexual intercourse without consent which carries a maximum penalty of 14 years, and three counts of indecent assault, which carry a maximum penalty of 5 years imprisonment each. The offending was against an18-year-oldman in 2013, and a 24-year-old political staffer in 2015.

Ward will be eligible for parole after three years and nine months. Wardhas expressed an intention to appeal the conviction.

Ward was a member of the New South Wales Legislative Assembly from 2011 to 2025. He resigned just before a parliamentary vote to expel him, narrowly avoiding becoming the fifth person in history to be expelled from NSW Parliament.

HistoricSexual Assaults andReforms to Sexual Assault laws

Sexual assault laws in New South Wales have changed significantly over the past few decades. When someone is charged, the law that applies is the one that existed at the time of the alleged offence. For example, Gareth Ward was charged under the laws that existed in 2013 and 2015.

In the case R v Fraser [1975] 2 NSWLR 521, Justice Wootten described how changing social attitudes were shaping theunderstandingof sexual assault, comparing this shift tothe abolition of slavery because both recognised the denial of human dignity involved.

In 1981,Labor Government Attorney General the Hon Francis John "Frank" Walker QC introducedthe Crimes (Sexual Assault) Amendment Act 1981 (NSW). This was one of the most significant reforms to sexual assault laws in NSW history, with the following changes:

• Abolished the offence of "rape" and replaced it with the offence of "sexual assault";

• Significantly expanded the definition of "sexual intercourse";

• Abolished the common law immunities which had held that a husband could not be charged with the rape of his wife;

• Introduced a list of circumstances where consent does not exist

• Clarified that freezing and not resisting is not consent;

• Changed the mental element (known in criminal law as the mensrea) so that being reckless about consent was treated as knowing that the person did not consent.

In 1989, the Crimes Amendment Act 1989 (NSW)then made the following changes:

• Introduceddifferent categoriesof sexual assault;

• Significantly increased maximum penalties for sexual offences.

Although passed with little public consultation, the categorisation of sexual offences continues to exist in the law today

In 2007 the Labour Government Attorney General the Hon BobDebusintroduced the Crimes Amendment (Consent-Sexual Assault Offences) Act 2007 ( NSW). these amendments:

• Introduced an express definition of "consent" as "free and voluntary agreement";

• Further clarified what it means for an accused to "know" that there is no consent;

• Listed situations where consent is automatically absent such as when a complainant is asleep;

• Set out a list of situations that may suggest that consent is absent

In 2021, the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW) introduced the" affirmative consent " model, under which consent is only present when all participants activelyindicatethat they are willing participants. In other words, consent is not assumed, and thethereneeds to be steps taken to actively check if a person is consenting to sexual activity.

The Definition of Sexual Intercourse

"Sexual intercourse" isdefinedin section 61HA of the Crimes Act 1900 (NSW)asthe penetration to any extent of the genitalia or anus of another person by any part of the body of another or any object manipulated by another, the introduction of the genitalia of a person into the mouth of another, the application of the mouth or tongue to the female genitalia or the continuation of any of these acts.

The Definition of Consent

The definition of"consent" is contained in section 61HI of the Crimes Act 1900 (NSW)asthe free and voluntary agreement to sexual activity at the time of the sexual activity. Consent must be present both at the time of the sexual activity and across different sexual activities during the sexual continuum. When withdrawing consent during sexual activity, the withdrawal of consent must be communicated by words or conduct otherwise it will not be considered to have been withdrawn. Once consent has been withdrawn during sexual activity, any further sexual activity will be considered without consent.

A failure to resist a sexual activity by word or conduct does not, by reason only of that, amount to consent. Furthermore, consenting to one particular sexual activity does not automatically,for that reason alone,mean that there is consent to any other particular sexual activity.There must be consent to each type of sexual activity in order for there to be a valid consent.

Section 61HJ outlines a non-exhaustive list of circumstances thatdo not amount toconsent, including the following:

• A person who freezes or does not say or do anything to communicate consent.

• A person has no capacity to consent if drug affected to an extent that he or she is incapable of consenting.

• A person who is unconscious or asleep.

• A person who agrees toparticipatebecause of force or fear of serious harm, including threats of harm to another person,property or animal.

• A person who agrees to participate because of coercion,blackmailor intimidation, or because the person is unlawfully detained, or overborne by abuse of a relationship of authority,trust or dependence, or because of fraudulent inducement.

• A person who is mistaken about the nature or purpose of the sexual activity, or mistaken about the identity of the other person, or mistaken about being married to the other person.

How to Prove an Accused Person Knew there was No Consent: Knowledge of Consent

There are three ways a prosecutor can prove that an accused person on trial for sexual assault knew that the alleged victim did not consent to the sexual activity, namely:

1. You knew that there was no consent; or
2. You were reckless about consent. This means thatyou realised the possibility that there is no consent butcontinuedin the sexual activity, or you did not care or did no teven turn your mind to whether there is consent at the time of the sexual activity; or
3. You had no reasonable grounds to believe that thethealleged victim was consenting. This can apply where the evidence shows that the accused person believed that there was consent.

What is Affirmative Consent?

If a defendant in a rape trial argues that he or shereasonably believedthat the complainant consented to the sexual activity, then the defendant must prove that he or she tried to as certain consent by word or conduct. Failure toascertainthis within a reasonable time before or at the time of the sexual activity will mean that the defendant's believe as to the presence of consent is unreasonable and therefore amount to rape. This is known as the affirmative consent laws in New South Wales.

The affirmative consent laws do not apply if a defendant is at the time of the sexual activity cognitively impaired or has a mental health impairment, and that impairment substantially caused the defendant not to as certain the presence of consent. The defendant bears the burden of proving his or her requisite mental infirmity on the balance of probabilities - if this type of defence is being raised in a trial.

The Maximum Penalty forSexual Assault

The offence ofsexual assaultiscontainedin section 61I of the Crimes Act 1900 (NSW)which carries a maximum penalty of 14 years imprisonment whenaperson commits a sexual assault if they have "sexual intercourse" without "consent."

TheMaximum Penalty forAggravated Sexual Assault

A maximum penalty of 20 years imprisonment applies to an offence of aggravated sexual assault.A sexual assault becomes aggravatedif, in addition to committing the offence of sexual assault,anyone or moreof the following apply:

• The accused inflicts actual bodily harm;

• The accused threatens to inflict actual bodily harm using a weapon

• The accused threatens to inflict grievous bodily harm;

• The accused was in the company of others

• The complainant is either under the age of 16, under the authority of the accused, has a serious physical disability, or a cognitive impairment

• The accused broke into the premises with intention, or deprived the complainant of their liberty

The Definition and Offence of Sexual Touching

The definition of "sexual touching" is contained in section 61HB of the Crimes Act 1900 (NSW). It means any touching that a reasonable person would consider sexual,taking into account the part of the body touched and the circumstances.The offence of sexual touching is contained in section 61KC of the Crimes Act 1900 (NSW).

It is an offence to "sexually touch" another without "consent," or to incite another person to do so, carrying a maximum penaltyof5 years imprisonment.

An aggravated version of the sexual touching offence is contained in section 61KD of the Crimes Act 1900 (NSW)carrying amaximum penaltyof7 years imprisonment.

The Definition and Offence of Committing a Sexual Act

The definition of "sexual act" is contained in section 61HC of the Crimes Act 1900 (NSW)whichmeans any act that reasonable person would consider to be sexual, having regard toallthe circumstances. It is an offence to commit a "sexual act" without "consent"carrying a maximum penalty of18 months imprisonment.

Sexual offence laws in NSW are complex and carry severe penalties.If you or someone you know is charged with a sexual offence, it is important to seek expert legal adviceimmediately.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.