What to know about changing consent laws

Laws have changed in NSW. Here's some advice on managing sexual assault presentations, wherever you are in Australia.

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Doctors can now access practical sexual assault referral advice and professional and emotional support through a 24-hour help line. 

Under recent changes to NSW consent laws that came into effect in June, consent needed to be clearly communicated. 

“The most simple take-home message is: silence is not consent,” said Tara Hunter, director of clinical and client services at Full Stop Australia.  

Ms Hunter urged doctors to call the help line to debrief and understand how to best manage patients. The trauma-informed service offers confidential support to anyone who has experienced sexual, domestic or family violence, and debriefing by trauma specialists for healthcare professionals.  

“The sexual violence line does support GPs, can provide clinical advice around referral options, and provide debriefing and support,” she told audiences at the Healthed’s Annual Women’s and Children’s Health Update in Sydney in August. 

Sexual assault presentations could be very complex and distressing for healthcare professionals, Ms Hunter said.  

“I know from managing a sexual assault service that people appreciate that space to say, ‘this happened and this is what I did, does that sound ok?’ So, I would encourage you to reach out for support if you need to.” 

Doctors could also call the help line when patients were with them if they consented to it, she said.  

“When we think about sexual violence, we know that someone has taken their choice and their consent away, so we really go strong on people consenting to a referral.” 

Ms Hunter said the legal changes reflected growing understanding of the trauma responses of fight, flight or freeze.  

“If people are fearful, often they’re not able to speak up and say no.”  

If people were asleep, unconscious or intoxicated, or if they could not remember what happened, then they had not consented, Ms Hunter said. 

She said contraception counselling was a good opportunity to raise the issue of consent and discuss new consent laws with patients. 

“Take some time to talk to the person around how they might negotiate in sexual relationships. ‘Are you currently in a relationship, are you able to negotiate and have clear communication with your partner or future partners?’.” 

If someone presented for emergency contraception or STI testing, try to understand the context of what happened, she said. 

“If someone comes in after a night where they’ve blacked out – and that’s a really common presentation in sexual assault services and common to our phone lines, where people might ring up and say something happened, I don’t feel right – do a further discussion around what might have happened with that person.”  

Try to incorporate discussion about consent into the assessment process, Ms Hunter said.  

“If someone is seeking contraception or emergency contraception, talk about whether they are having challenges around negotiating using contraception and generally how are they communicating in terms of their sexual activity and engagement with partners. 

“It’s a good opportunity to encourage people to have that communication. Communication doesn’t have to be a passion killer or ruin the moment. It can enhance sexual activity.” 

It was important that patients understood the limitations of confidentiality, too, if the health care professional had concerns about their safety and wellbeing, or if they were under 16. 

Ms Hunter said talking about sexuality and sexual health was uncomfortable for some people, but health care professionals had an opportunity to model talking openly about sex.  

“Stick to the facts and direct people to some of the practical considerations when thinking about consent.”  

If someone has been sexually assaulted or they are not sure what happened to them, give them choice and resources, look for referral options for support and identify whether follow-up is needed, she said.  

“When someone makes a disclosure, check in: ‘Is there anything else that we need to cover off here today?’ 

Disclosure of sexual assault or other forms of gender-based violence was a process, not a one-off event, she said.  

“People have made a choice to tell you something and they might not be sure what they want to happen next, so it’s about checking in. What are your main concerns?” 

Common concerns heard from frontline sexual assault services were fears about getting pregnant or contracting sexually transmitted infections, she said. 

“Provide practical support if they want to talk to someone about what’s happened. And if you’re concerned about someone’s safety, make sure you’re checking in around that and referring people to services where they can support and do a risk assessment.  

“If you’re working with someone and you’re concerned you might need to make a report, be transparent around that and try to engage them in the process.”  

Ms Hunter said that when young people sought advice about becoming sexually active, it was important to remember that the law applied to people aged 16 and over.  

“If you’ve got patients under 16, there’s an assumed principle that that person is unable to consent unless there are other considerations.”  

Consent was also act-specific and could be withdrawn at any time, Ms Hunter said. 

“Someone may invite someone home, and if that person says yes, that doesn’t mean they’ve consented to anything else other than going to that person’s house.  

“There needs to be specific discussion around what goes on in that house and it can be withdrawn at any time. That person can get to the front door and say ‘actually I don’t want to go inside’. 

“Everything needs to be clearly communicated. One can’t assume someone is consenting because they don’t say no.”