Consent and the law
Sex should be respectful and legal
The laws around consent are clear - it’s your body and you have rights:
- you must be old enough to legally consent to sex
- certain groups of people can’t ever legally have sex with you
- you should feel 100% comfortable and freely agree to sex.
Not only are there a lot of emotions involved in sexual relationships, there are also laws. It’s important that you’re aware of these laws to be clear on the difference between consensual sex and sexual assault.
The laws relating to sexual relationships define:
- age of consent
- types of consensual relationships
- free agreement concept.
Legal definition of sex
In legal terms, having sex is anything that involves:
- a penis touching a vagina, anus or mouth
- an object of another part of the body coming into contact with the vagina or anus
- touching a person in a sexual way, such as touching another person’s vagina, penis, anus or breasts.
Age of consent
The legal age of consent is the age the law says you are able to agree to have sex. If you aren’t old enough then you can’t legally consent (agree) to sex. In most Australian states and territories, the legal age of consent to sex is 16 years old except:
- in Tasmania and South Australia, you must be 17 or older
Even if you say yes to sex, freely and enthusiastically, if you are under the legal age of consent, the person who has sex with you could be committing a crime.
It is the responsibility of the person requesting sex to ensure the other person is legally able to give consent.
NOTE: Consent laws can change. It’s the responsibility of the person seeking to gain consent to know the current law for their state or territory.
The law also states that certain people cannot have sex with you, even if you’re legally old enough to consent:
- No member of your family (e.g. parent, grandparent, step-parent, parent's partner, brother, sister, half-brother, half-sister) can have sex with you.
- A person in a position of authority or caring position (such as a sports coach, teacher, youth worker, guardian, police officer, or health professional) cannot have sex with someone in their care who is under 18 years of age.
- In some jurisdictions there is no age limit – if a person is in a caring role, they cannot have sex with the person in their care.
The free agreement law states that each person must freely consent to sex. To freely consent or agree, each person must be 100% comfortable with the situation and know exactly what it is they are agreeing to.
Sometimes a person will say yes to sex when they don’t really want to, or is uncertain, or is unable to freely say no. This happens when a person:
- can’t say no because they are drunk or affected by drugs
- can’t say no because they are afraid that they will be harmed if they don’t say yes
- can’t say no because they are afraid that somebody else will be harmed if they don’t say yes
- is tricked or deceived into sex (e.g. agrees to one type of sexual act that turns into something they hadn’t agreed to)
- is asleep, unconscious or semi-conscious
- is incapable of understanding, or mistaken about what they were consenting to
- believes they can’t, or have no right to say no.
Sex without free agreement is either rape or sexual assault. Free agreement is based on mutual respect and acknowledges each person’s sexual rights and responsibilities.
When your rights are violated
When your sexual rights are violated it is not only disrespectful, but could also be a crime.
Unwanted touching such as groping, fondling and grabbing is non-consensual and classified as indecent or sexual assault.
Stalking behaviours such as following, loitering, repeated contact and messages, threats, intimidation, and unwanted gifts or deliveries are criminal offences.
Contact the police immediately if you believe you are being stalked, threatened or intimidated.
Sexual harassment is any kind of unwanted sexual behaviour that is offensive or intimidating and can include:
- verbal or written abuse
- unwanted touching
- sexual insults, jokes, comments, or questions
- uninvited advances
- repeated requests to go out
- sexual gestures
- leering and glaring
- indecent exposure.
The Crimes Act of each Australian state rules it unlawful to perform sexual acts without the other person’s consent. The sexual assault laws include rape and any violence or power abuse which results in non-consensual sexual activity.
Acts of gross indecency, for example, if someone masturbates in front of you without permission, is a punishable form of sexual assault.
Filming without consent
Filming or photographing somebody’s body parts without their knowledge, or of them engaging in a sex act of any kind, is a serious violation of their consent and the law.
Making someone watch a pornographic movie against their will is an instance of sexual assault.
Someone who is intoxicated (too drunk, high) cannot give consent. The law defines sex with an intoxicated person as non-consensual sex.