New South Wales

Repealed  * Division 10 of the Crimes Act prohibited and defined sexual violence against adults and children. Division 10 stated that a person consents to sexual intercourse if the person freely and voluntarily agrees (§ 61HE(2)). As provided in section 61HE(3), a perpetrator was deemed to know that the other person does not consent if they have actual knowledge, are reckless as to consent, or had no reasonable belief that the other person consented.

In Kiss v R [2021] NSWCCA 158, the New South Wales Court of Criminal Appeal considered an appeal against a sentence by the applicant, who had been convicted of three counts of sexual intercourse without consent and one count of intentionally choking or strangling the complainant. At the time of the offences, the applicant and the complainant were in a relationship. On appeal, the applicant argued that the offences were objectively less serious because they occurred in the context of an ongoing consensual relationship.