Sexual Assault is a crime. It covers any sexual contact that you don’t consent to, including:
unwanted sexual touching or sex;
the use of force, threats or intimidation to make you do something sexual that you do not want to do; and/or
sexual activity that you are unable to agree to because you are, for example, unconscious or very intoxicated.
You may feel unsure about whether what happened to you was a sexual assault. This is not uncommon. Consent is your voluntary agreement to engage in the sexual activity in question. Consent must be obtained every time and for each sexual activity; a person can’t rely on the fact that you’ve agreed to sexual contact or a particular sexual activity before, even if you are married or in a relationship with that person. Sexual contact is only lawful if a person communicates her/his consent through words or conduct. Silence or passivity does not equal consent. It is the responsibility of the person pursuing the sexual activity to ensure there is consent.
There is no consent when:
you say or do something that shows you are not agreeing to a sexual activity;
you say or do something to show you are not agreeing to continue a sexual activity that has already started;
you are incapable of consenting to the sexual activity because you are unconscious or very intoxicated;
you only agree to the sexual activity out of fear that you or someone else will be harmed;
you only agree to the sexual activity as a result of someone abusing a position of trust, power or authority; or
someone else has consented to the sexual activity on your behalf.
These are serious offences that carry serious penalties, including mandatory minimum penalties.
The age of consent to sexual activity is 16 years. In some cases, the age of consent is higher (for example, when there is a relationship of trust, authority or dependency).
In other words, a person must be at least 16 years old to be able to legally agree to sexual activity.
Close in age exceptions
A 14 or 15 year old can consent to sexual activity as long as the partner is less than five years older and there is no relationship of trust, authority or dependency or any other exploitation of the young person. This means that if the partner is 5 years or older than the 14 or 15 year old, any sexual activity is a criminal offence.
There is also a "close in age" exception for 12 and 13 year olds. A 12 or 13 year old can consent to sexual activity with a partner as long as the partner is less than two years older and there is no relationship of trust, authority or dependency or any other exploitation of the young person. This means that if the partner is 2 years or older than the 12 or 13 year old, any sexual activity is a criminal offence.
A 16 or 17 year old cannot consent to sexual activity if:
- their sexual partner is in position of trust or authority towards them, for example their teacher or coach
- the young person is dependent on their sexual partner, for example for care or support
- the relationship between the young person and their sexual partner is exploitative
The following factors may be taken into account when determining whether a relationship is exploitative of the young person:
- the young person's age
- the age difference between the young person and their partner
- how the relationship developed (for example, quickly, secretly, or over the internet)
- whether the partner may have controlled or influenced the young person