Consent

Consent is extremely important when you are having sex.

If you do not consent to sex, then it is rape or sexual assault. You can withdraw consent at any time, even after you have started having sex.

Any sexual act, including kissing, touching or intercourse, that happens without your consent is illegal. This is true regardless of whether it happens with your boyfriend/girlfriend, date, friend or a complete stranger.

It is also important to understand what consent is. Consent is not just about how old a person is, as in some circumstances the law says you cannot consent to sex:

  • if you are under the influence of alcohol or drugs and are confused or don’t understand what you’re doing;
  • if you are passed out and don’t know or understand what is happening; or
  • if you feel pressured, intimidated, threatened or forced into doing any sexual act.

Remember – your silence does not equal consent.

Click on your state or territory to see the different ages of consent around the country.

Differences between states

Northern Territory

In the Northern Territory, consent means free agreement. This means that a person cannot consent to sexual intercourse if they:

  • are asleep, unconscious or so affected by alcohol or drugs that they are unable to consent to sex,
  • are mistaken about or unable to understand the sexual nature of the act;
  • submit to sex because they are pressured to do so by threats or are unlawfully detained.

There are also some situations where, because of a person’s age, they cannot consent. This is called the age of consent.

In the Northern Territory, it is a crime to have sexual intercourse with a person who is under the age of 16.

“Sexual intercourse” means the penetration to the least degree of the vagina, genitalia, anus, or mouth by the penis and includes the continuation of sexual intercourse after such penetration. Sexual intercourse includes oral sex.

If the younger person is 14 years or above, it is a defence if it can be proved that the older person believed on reasonable grounds that the younger person was 16 years of age or older.

Any person having a sexual relationship with a person under the age of 16 that they are not married to may be found guilty of “maintaining a sexual relationship with a young person” and could be sent to prison.

If a person is convicted of these kinds of crimes, it can lead to being put on the Sex Offender Register.

ACT

Consent must be given for any sexual acts. There are some situations where the law says that a person cannot give consent. These include where 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 person 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,
  • the 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, or
  • the unlawful detention of the person.

There are also some situations where, because of a person’s age, they cannot consent. This is called the age of consent.

In the ACT it is a crime to have sexual intercourse with a person who is under the age of 16.

The exception to this rule is where:

  • the younger person was at least 10 and the accused was no more than 2 years older; and there was consent, or
  • the older person believed on reasonable grounds that the other person was 16 years of age or older.

“Sexual intercourse” means the penetration to any extent of the vagina, genitalia or anus of a person by any part of the body of another person (including oral sex), or penetration by an object being carried out by another person.

In some situations, if an adult has information that a sexual offence has been committed against a child, it can be a crime if that adult does not report that information to the police.

Any person having a sexual relationship with a person under the age of 16 that they are not married to may be found guilty of “maintaining a sexual relationship with a young person” and could be sent to prison.

If a person is convicted of these types of crimes that person can also be put on the Sex Offender Register.

Western Australia

In Western Australia, consent means a person has freely and voluntarily agreed. Someone who is drunk, drugged, unconscious or asleep can’t freely consent. A person can’t freely consent if they have been forced, tricked or threatened into having sex.

There are also some situations where, because of a person’s age, they cannot consent. This is called the age of consent.

In Western Australia it is a crime to have sexual intercourse with a person who is under the age of 16.

The law refers to sexual intercourse as ‘sexual penetration’. Penetration can include anything that involves a penis or other body part entering a vagina, anus, or urethra. It also includes putting an object or a part of the body into contact with a vagina or anus. ‘Penetration’ can also include oral sex.

Any person having a sexual relationship with a person under the age of 16 that they are not married to may be found guilty of “maintaining a sexual relationship with a young person” and could be sent to prison.

If you are convicted of these types of crimes you can be sent to prison and potentially put on the Sex Offender Register.

NSW

In NSW consent must be given freely and voluntarily. Getting consent by use of lies, or other ways that are not consent by free will, is not consent. The law says you don’t have the capacity to consent if you are unconscious, asleep, or have consumed drugs or alcohol to the extent that they make you incapable of consenting.

There are also some situations where, because of a person’s age, they cannot consent. This is called the age of consent.

In NSW it is a crime to have sexual intercourse with a person who is under the age of 16.

There are no exceptions to this rule, even if there was consent and the other person was only a couple of years older.

“Sexual intercourse” means the penetration to the least degree of the vagina or anus, by the penis or another body part or an object. It also includes oral sex.

Any person having unlawful sexual intercourse more than three times with a person under the age of 16 may be found guilty of an offence (“persistent sexual abuse”) and could be sent to prison. It is not a defence if the older person believed you were 16 years of age or older at the time.

If you are convicted of these types of crimes you can also be put on the Sex Offender Register.

Victoria

In Victoria, consent means free agreement. A person is taken not to have consented to sex if the person:

  • submits because of force or the fear of force,
  • submits because of the fear of harm of any type,
  • submits because the person is unlawfully detained,
  • is asleep or unconscious, or
  • is so intoxicated as to be incapable of consenting to the act.

There are also some situations where, because of a person’s age, they cannot consent. This is called the age of consent.

In Victoria it is a crime to have sexual intercourse with a person who is under the age of 16.

However, it is not an offence if the person honestly believed that the other person was 16, or if there was less than a two-year age difference between the two people.

If you are under 12, a person must not have sex with you or touch you sexually or perform a sexual act in front of you. You cannot agree to any of these things happening to you, or in front of you.

If you are 12 to 15 years old, a person can’t have sex with you, touch you sexually or perform a sexual act in front of you if they are more than two years older than you, even if you agree.

If you are between 16 and 18 years old, a person who is caring for you or supervising you (like a teacher, youth worker or foster carer) can’t have sex with you, sexually touch you or perform a sexual act in front of you, even if you agree, unless they are married to you.

For more information, you can look at a Victoria Legal Aid fact sheet on the Age of Consent.

South Australia

In South Australia the meaning of consent is free and voluntary agreement. A person who is asleep or unconscious cannot consent, nor can a person who is physically or mentally impaired so as to be unable to freely and voluntarily agree. A person does not consent if they agree to sexual activity because of threats, force or while they are unlawfully detained.

There are also some situations where, because of a person’s age, they cannot consent. This is called the age of consent.

In SA the age of consent for sexual interactions is 17 years. This means that it is a crime to have sex with a person who is under the age of 17.

The only exception to this is where:

  • the young person was aged 16 or over, and
  • the accused is aged under 17, or
  • the accused believed on reasonable grounds that the young person was aged 17 or older.

This means that sex between a 14 year old and a 15 year old is not legal. The only time that sex between two people who are both under the age of 17 is legal, is where they are both aged 16 and both consented.

It is also important to recognise that in situations where one person is 17 years or older, the fact that the younger person consented is not a defence to a charge against the older person. This means that if a 17 year old has sex with a 14 year old, they commit an offence even if the 14 year old consented.

It is also an offence for a person in a position of authority over a young person to have sex with the young person if he or she is under 18. Positions of authority include teachers, tutors, health professionals, employers and foster carers. This means that for the purposes of sex with a person in a position of authority, the age of consent is 18.

Tasmania

In Tasmania, consent means free agreement. A person cannot freely agree if they are drunk, drugged, unconscious or asleep. This means that if someone becomes unconscious during sexual activity that they consented to, that activity must not continue. It is not consent if a person agrees because they are forced, threatened or tricked into sexual activity. A person can also withdraw their consent at any time. It does not matter if they consented to begin with and they have already started engaging in sexual activity.

There are also some situations where, because of a person’s age, they cannot consent. This is called the age of consent.

If you’re 17 years or older, you can consent to have sex with anyone else 17 years or older, as long as the other person is not in a position of authority – like a carer, coach, teacher, employer, or anybody else with authority over you.

“Sexual intercourse” means the penetration to the least degree of the vagina, genitalia, anus, or mouth by the penis, another body part (such as hands), or an object controlled by the other person, and includes continuing that sexual intercourse after such penetration.

It is a defence if it can be proved that the older person believed on reasonable grounds that the other person was 17 years of age or older.

Any person having a sexual relationship with a person under the age of 17 that they are not married to may be found guilty of “maintaining a sexual relationship with a young person” and could be sent to prison.

If you are convicted of these types of crimes you can also be put on the ‘Community Protection Offender Register Tasmania’, sometimes referred to as the ‘Sex Offender Register’.

Queensland

In Queensland, consent means free and voluntary agreement. It is not consent if a person agrees because they are forced, threatened or tricked into having sex.

There are also some situations where, because of a person’s age, they cannot consent. This is called the age of consent.

It is a crime to have sexual intercourse with a person who is under the age of 16. 

Sexual intercourse means the penetration to any extent of the vagina, vulva or anus by the penis or any other object.

It is a defence if it can be proved that the older person believed on reasonable grounds that the other person was 16 years of age or older provided that the other person was at least 12 years of age.

Any person over the age of 18 having a sexual relationship with a person under the age of 16 may also be found guilty of “maintaining a sexual relationship with a young person” and could be sent to prison.

‘Grooming’ is also a crime. This may be where an adult does something with the intent of getting a person under the age of 16 to engage in a sexual act.

If you are convicted of these types of crimes you can also be put on the Sex Offender Register.