Sexual Consent
What is it?
When an individual gives their permission to engage in an activity by their own free mind without the influence of drugs, alcohol or persuaded. It is NEVER ok for someone to force you to have sex without your permission – you have the right to say NO at any time.
The Age of Consent?
The legal age for consensual sex varies across Australian state and territory jurisdictions. The age of consent is 16 years of age in the Australian Capital Territory, New South Wales, Northern Territory, Queensland, Victoria and Western Australia. In Tasmania and South Australia the age of consent is 17 years of age.
What is Rape?
In Australia, rape is defined in gender-neutral terms as the penetration of the vagina, anus or mouth without consent.
In all Australian states and territories, it includes penetration with the use of any body part or object.
What makes Australian criminal law confusing is the inconsistent use of terms and definitions in state and territory legislation. In the majority of Australian jurisdictions, a “sexual assault” refers to an indecent assault that does not involve penetration (and is therefore treated differently to “rape”).
Everyone has the right to say ‘no’ to sex, to withdraw or withhold their consent for any sexual act, on any occasion and under any circumstances, regardless of whether they’ve given consent to sex with that person in the past and regardless of whether they’re in a relationship with the other person. Sex without consent is rape.
There are no grey areas when it comes to consent, for example:
If someone is under the age of 16, they don’t legally have the capacity to consent to sex. If someone is asleep or unconscious, they don’t have the capacity to consent. If they’ve been kidnapped or held against their will, they don’t have the freedom to consent.
Freedom and capacity are central to the definition of consent, someone saying “yes” to sex doesn’t automatically mean they’ve consented. If someone is in an abusive or exploitative relationship, for example, they might say “yes” out of fear for their lives, or for the lives or well-being of family or friends. Being coerced, bullied, scared, shocked or threatened takes away our freedom and capacity to make choices in lots of different situations.
Sexual Consent in LGBT+ Community
Regardless of your sexual orientation or how you declare your own gender identity, everyone has the right to consent to sexual activity.
Many men may feel embarrassed or ashamed that another man has assaulted or even raped them, because they didn’t say ‘no’. The man being raped may be too afraid to speak, too drunk or asleep to stop it happening. This is still rape.
In women in same sex relationships feel no one will believe their partner assaulted them as the law states rape is legally defined by penis penetration. This is not the case, if a woman does not want to consent in sexual activity with another woman, that is assault. If this results in penetration, this defined as assault by penetration.
Disclosing your gender identity is a personal a choice and does not warrant your partner to believe it is okay to force you to engage in sexual activities until you are comfortable to do so. If you are transitioning, ‘coming out’ or entering a new relationship it does not remove the significance of consent.