Sex and Consent
Disclaimer: The material in this factsheet is a general guide only. It is not legal advice. For legal advice about your own particular situation we encourage you to call the Free Legal Helpline on 1300 366 424. The legal information was correct at the time of publishing (April 2016), however may change without notice.
The Legal Services Commission gratefully acknowledges the assistance of the Victorian Legal Aid in allowing the Legal Services Commission of South Australia to use and adapt existing content.
In this section you will find information on:
- Having consensual sex
- The age of consent
- How to check for consent
Having consensual sex
You and your partner must both consent to having sex – that means agreeing voluntarily and with a clear mind. It means only doing something sexual because you both really want to and you are both making an active choice, not because either of you is feeling pressured or unsure about what’s going. Consent is more than just saying ‘yes’ or ‘no’. Its also about:
- Being the legal age to consent;
- Feeling safe – having sex without pressure or fear; and
- Understanding – being awake and in control, not being so drunk or high that you are not sure about what you or the other person wants, and not having a mental or physical disability that is so severe that it prevents you from understanding what’s going on.
The legal definition of sex isn’t just about penetration. It also includes masturbation and fingering, oral sex, anal sex and sexual touching (touching breasts and other body parts in a sexual way).
The same laws apply no matter what gender or sexuality you and the other person or people are.
Always double-check that the person you want to have sex with is sober and is comfortable with their decision to have sex. If there’s no mutual desire and consent it’s sexual assault, which is against the law.
The law says you also need to be legally mature enough to consent to a sexual relationship. The law sets clear age limits for having sex (see below).
We all have sexual responsibilities and sexual rights. We all have the right to decide when, where, in what situation, and with who we would like to be sexual with. We all have the responsibility to make sure that the people we want to be sexual with are comfortable and agree to all sexual activities. We should only be sexual with someone if we know that they're into it.
Each and every time you do anything sexual, ranging from touching and kissing to having any kind of sex, you must always have the other person’s consent, from beginning to end. People might consent to one thing or a few things, but not to others. People might consent to begin with, and then change their mind. That’s their sexual right.
We can show sexual consent by our words or by our actions. Just because someone doesn’t say ‘no’, doesn’t mean that they are consenting. We all have the right to react in different ways.
A good way of looking at is to check in to see whether you’re getting an enthusiastic ‘yes’ from the other person, either by their words or their actions. If you’re not, or you’re getting mixed signals, or you’re unsure, it’s your sexual responsibility to stop what you’re doing. It’s the most respectful thing to do. Going on further could be sexual assault.
The law is clear that we should never assume someone is consenting.
We should never assume that a person is consenting because they have said yes at other times or because of their reputation or the way they act or dress.
If we continue to be sexual towards someone because we assume that it’s ok without checking in with them, or don’t care whether they are consenting or not – this can be sexual assault.
Remember, no one has the right to expect sex, and everyone has the right to expect sexual respect. It doesn’t matter who you are, where you’re from, what you’ve done in the past, what you’re in to, or how you’re dressed – EVERYONE has the right to be shown sexual respect. And we also ALL have the responsibility to always check in to see whether the other person is consenting or not.
What are the situations which never count as being consensual sex?
There are some situations when someone may have something sexual done to them, or even agree to something sexual, but the law will say that that person did not actually consent. This includes:
- If they are so drunk or drug affected that they don’t know what is going on;
- If they are asleep or unconscious;
- If they are affected by a physical, mental or intellectual condition which means that they are not able to freely agreeing to the sexual activity;
- If someone is manipulated, threatened or forced into sex (even if they agree);
- If the person doesn’t understand the sexual nature of the activity;
- If the person agrees to sex but thinks that the person they are having sex with is someone else; or
- If the person hasn’t reached the age of consent (see below).
The Age of Consent
What does the ‘age of consent’ actually mean?
There are laws all over Australia about not having a sexual relationship with people under a certain age. This is all to do with the age of consent. The laws are the same for everyone in South Australia - it doesn’t matter what sex, gender, or sexuality you or the other person (or people) are. The age of consent law applies to all kinds of sex or sexual touching.
A person can be charged with a sexual offence if they perform a sexual act that breaks these age limits, even if the younger person agrees to it. If someone in South Australia has any kind of sex with someone under the age of consent, the law will say that this is sex without consent, even if the young person agrees.
Sex without consent is against the law.
The age of consent laws are about trying to protect young people from being taken advantage of by older people. The law is trying to protect young people in situations where they might not have a choice but to agree, or are only agreeing because the older person has more power in their relationship and is influencing them. Basically the law is assuming that a young person needs to be protected because they might not even be aware of the fact that the other person has too much influence or power over them.
So remember, if someone is under the age of consent, the law will say that they are not old enough to legally consent to sex. They might agree to it, but this still won’t count as consent.
What’s the actual ‘age of consent’ in South Australia?
The age of consent is South Australia is 17 years old. This is the same for any gender, not matter what kind of sex you’re having.
So, this means that it is against the law for anyone to have sex with someone who is under the age of 17 years old.
The only situation where the age of consent is not 17 years old is when there is someone who is in a position of power or authority over a young person, and they have some kind of sex with them. The law will say that in these situations, both people must be over 18 years old before it counts as consensual sex. So, if someone in a position of power or authority over a young person (for example, a teacher, youth worker, foster parent, step parent, religious leader, doctor, social worker, or a boss), then the age of consent is 18 years old. Even if the younger person agrees, it won’t count as legal consent until they reach 18 years old.
The law is clear that having sex with anyone under 14 years old is considered a very serious offence.
What if one of us is 17 or older, and the other person is under 17, and we both want to have sex?
Even if you both agree, the law will say that the person who is over the age of consent could get charged with breaking the law for having a sexual relationship with someone under 17.
What if we’re both under 17 and we both want to have sex?
Police are able to charge people (including young people) for having sex with someone under the age of consent. However, there are a whole lot of factors that go into whether the police decide to charge or prosecute somebody. It’s not clear cut. It is up to the police to decide whether to charge or prosecute someone, not anyone else. They will weigh up a lot of factors and make a decision. While it is less likely that police will charge two people who are, for example, both 16, if it looks like there may be a power imbalance in the relationship, if someone wasn’t sure what was happening, or if things look more complex, then they might choose to charge someone.
Does it make a difference if we’re in a relationship?
The same laws about consent apply to everyone. People in a relationship, people who are seeing each other in a casual way, or people who have just met – it doesn’t matter – everyone must follow the law about consent to do with sexual rights, responsibilities, and the age of consent laws.
Where to get help or talk to someone
If you’ve got questions about the law …
The Legal Services Commission’s free Legal Help Line – telephone 1300 366 424.
The Children’s and Youth Legal Service of SA – telephone 8342 1800
If you’d like to talk to someone about something that’s happened to you…
Therapeutic Youth Services – telephone 8202 5060
SHine SA – counselling service – telephone 1300 794 584
Yarrow Place Rape and Sexual Assault Service – telephone 1800 817 421
Child and Youth Health Service – telephone 8161 700
If you’d like to talk to the police…
Police – telephone 131 444