What is Consent?
Consent is the central defining difference between sex and sexual assault. Consent can be withdrawn at any stage of sex. If you consent to have sex with someone, you can change your mind and withdraw consent. Consenting to one sexual act does not mean you consent to all sexual acts or to future sex with the other person. Consenting to one way of having sex does not mean you always consent to all sexual acts. Consent must be given freely and not as a result of pressure or threat. It’s important to know that if you want to have sex, that you can also negotiate consent.
What is consent?
- Consent is asking someone if they want to have sex with you.
- Consent is in the way you ask for sex, not adding any pressure, giving them time and space to say no.
- Consent is looking for any hesitations: ‘yeah maybe’ or ‘I’m not sure’ is not the same as ‘hell yes!’ and ‘yes please!’
- Consent is making sure the other person has not had significant amounts of drugs or alcohol that could inhibit their understanding of what is happening or their ability to ask for what they want.
- Consent is knowing someone’s capacity for understanding the implications of sex: are they over the legal age of consent, do they have full intellectual capacity and no language barriers to stop them understanding what is happening?
- Consent is discussing contraception and sexual health before engaging in sex.
- Consent is checking in regularly: ‘Does this feel good for you?’, ‘Are you OK?’, ‘Is there something I can do to make you feel good?’
- Consent is asking before each new position or move: ‘Can I do this to you?’, ‘Would you like to try that with me?’, ‘Can I touch this part of your body?’
- Consent is self-control.
We think that this film explains consent well. If in your culture or family saying no to a cup of tea is considered rude, then imagine that instead of tea as an analogy it is a piece of chewing gum they are offering.
What is NOT Consent?
We commonly hear that consent is a confusing concept. When looking for the use and abuse of power it is less confusing. Here are some ways to clearly identify when it is NOT consent:
- Consent is NOT when the person we want to have sex with is unconscious or asleep.
- Consent is NOT assuming that because you have had sex with someone before, they want to always have sex with you.
- Consent is NOT tricking someone in to having sex in a particular way or place.
- Consent is NOT getting someone drunk so they have sex with you.
- Consent is NOT forcing or pressuring someone to do something sexual they are not comfortable with.
- Consent is NOT threatening to ‘out’ someone if they don’t have sex with you.
- Consent is NOT threatening to expose private or personal information about someone if they don’t have sex with you.
- Consent is NOT pretending you are someone else to get someone to have sex with you.
- Consent is NOT lying about barriers and protection or STIs.
- Consent is NOT begging and bribing someone into having sex with you.
- Consent is NOT shaming someone into having sex with you.
Part of the issue with many sexual assault laws is that they vary between jurisdictions in Australia. Whilst there are moves to harmonise sexual assault laws in all states and territories within Australia, we are not there yet.
All jurisdictions in Australia, except for the Australian Capital Territory, have what is known as a “positive definition” of consent. This means that to consent, someone must be able to do it freely and voluntarily. Consent is designed to encourage positive communication and a positive understanding between those negotiating sex.
Engaging sexually with another person who cannot freely give consent is a crime.
Within the definition of consent there are also parts of the law that refer to exceptions, or situations where consent is negated. This covers situations in which the victim could not possibly have consented to sex with the view that consent is freely given.
These exceptions vary slightly between the states and territories, however the law makes it clear that a person cannot give consent if that consent is caused by:
- The infliction of violence or force on the person, or on a third person who is present or nearby.
- A threat to inflict violence or force on the person, or on a third party who is present or nearby.
- The use of extortion against the person or another person.
- A threat to publicly humiliate or disgrace, or to mentally harass, the person or another person.
- A mistaken belief as to the identity of the other person.
- The effect of intoxicating liquor, a drug or an anaesthetic.
- A fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person.
- Abuse by the other person of his or her position of authority over, or professional or other trust in relation to, the person.
- The person’s physical helplessness or mental incapacity to understand the nature of the act in relation to which the consent is given.
- The unlawful detention of the person.
Reference: Crimes Act 1900 (PDF Download), Part 3 Sexual Offences, Section 67, R83-Effective 24/2/2013, pp 55-56
The age of consent laws of all states and territories of Australia apply equally regardless of the gender and sexual orientation of participants. The age of consent for “sexual interactions” in each of the Australian States and Territories are:
- Australian Capital Territory (ACT) – 16 years
- New South Wales (NSW) – 16 years
- Northern Territory (NT) – 16 years
- Queensland (QLD) – 16 years
- Victoria (VIC) – 16 years
- Western Australia WA) – 16 years
- Tasmania (TAS) – 17 years
- South Australia (SA) – 17 years
Furthermore, everywhere except for Queensland and Tasmania it is also illegal for someone in a special care relationship to engage in sexual activity with someone who is under the age of 18 (AIFS 2017). Examples of special care relationships include teachers, coaches, foster/step-parent, religious leaders, and personal carers.
The reason for these additional laws is to recognise the power imbalance inherent within those in positions of care and authority, as well as the power imbalance inherent with sexual violence.
Under the Age of Consent
Where both people are under the age of consent, the laws try to recognise that sexual experimentation is normal between peers. It is only appropriate when there is no coercion and all people have the ability to consent.
Legislation in the ACT, WA, TAS and VIC have laws that address sexual exploration so as to not criminalise all behaviours between young people. In the ACT, this is called the “Two Year Rule.” This acts protectively if two young people under the age of consent engage in sexual experimentation. However, it is important to note that the power differentials are taken into account and how consent was negotiated is examined in the event the interaction is reported to police.