Consent

For free and confidential legal advice about this topic, please contact us here. 

Consent is important for all people, of all sexualities, in all kinds of situations. It is especially important for any kind of sexual activity with another person. It is NEVER okay for someone to do something sexual to you or in front of you without your consent. There are also some situations where a person can’t give consent. 

In NSW new laws about consent (sometimes called affirmative consent laws) started on 1 June 2022. It’s really important to know what these laws say and to keep them in mind for any kind of sexual activity. 

What does consent mean?

Generally, consent means getting permission to do something. This is important in many different types of everyday situations. For example, you should ask for someone’s permission before borrowing something or before posting a photo of them on social media. Consent to sexual experiences is no different. 

Legally, consent to a sexual activity means free and voluntary agreement. You need to give consent and make sure you get consent each time you do a sexual activity with another person. This applies to all types of sexual activity, not just penetrative sex. 

A person does not consent to a sexual activity unless they say or do something to communicate consent. A person also does not consent if they are forced, blackmailed or intimidated to participate in the sexual activity, or if they are asleep or unconscious, or if they are so affected by alcohol or drugs that they are incapable of consenting. We explain more about what consent does, and doesn’t, look like below! 

Remember: 

• just because someone has given consent in the past, it doesn’t mean that they agree to doing it again 
• a person can change their mind and withdraw consent at any time
• consent to one type of sexual activity is not consent to other kinds of sexual activity. 

Want to find out more about what consent means, and what it looks like? Check out these resources: 

• NSW Government – Make No Doubt 
• Kids Helpline – What is consent? 
• Play Safe NSW, and especially the page on Consent: How does it work? 

When do you need to make sure someone consents?

You need to have consent before doing any kind of sexual activity with or in front of another person. This includes kissing or touching someone, exposing your genitals or masturbating, as well as oral or penetrative sex.

All people involved in a sexual activity need to consent, and make sure everyone else consents. However, it is especially important for the person initiating sexual activity to make sure the other person (or people) consents.

If you are not sure if a person consents, you must say or do something to find out before you engage in a sexual activity.

What does consent look like?

Consent requires ongoing and mutual communication and free and voluntary agreement between people each time they participate in any kind of sexual activity.

The law says you must know or have reasonable grounds for believing that the other person consents to the sexual activity. This means that anyone who participates in any kind of sexual activity must say or do something to find out if the other person (or people) consents to the sexual activity.

You can’t ever presume that someone has consented, even if you’re in a relationship with that person, or they have consented to a sexual activity in the past. Also just because someone consents to a particular sexual activity, it does not mean that they consent to any other sexual activity. This can include stealthing, which means if someone only agrees to sex using protection like a condom, sex without a condom is sex without consent.  

How can you be sure that someone is consenting? You can: 

• ask the person what they want to do (for example, ‘Can I kiss you’ or ‘Is this okay?’, or ‘Do you want to do what we were doing yesterday?’, or ‘Do you want to wait?’) 
• ask the person where their boundaries are (for example, ‘Do you feel comfortable doing this?’ ‘I was thinking about trying oral sex, how do you feel about that?’, or ‘Should we wait a bit longer?’) 
• check in regularly to make sure they are still comfortable, especially if they start to look uncomfortable or unsure 
• look at a person’s body language to see if they look comfortable (while body language can be a great way to figure out how the other person is feeling, it is never a replacement for verbal communication. It is always important to check in with the other person and ask to make sure they consent.) 

It is best to think of consent as an enthusiastic yes!  

Changing your mind

A person can withdraw their consent at any time, either by something they say or by their behaviour. If sexual activity continues after consent has been withdrawn, the sexual activity is occurring without consent and is a crime.

What are the circumstances where there is no consent?

The law says that a person does not consent to a sexual activity if they: 

• freeze, which can be a common response to trauma, or do not say or do anything to communicate consent. Remember silence does not mean consent
• don’t have the capacity to consent, including because of age or cognitive incapacity
• are so affected by alcohol or other drugs that they are incapable of giving consent 
• are unconscious or asleep
• only participate because they have been forced to or because they are fearful of harm to them or another person, animal or property. This includes forceful or threatening behaviour that occurs at any time and not just at the time of the sexual activity
• only participate because they have been coerced, blackmailed or intimidated at any time and not just at the time of the sexual activity
• have been unlawfully detained (or another person has been unlawfully detained)
• are overborne by the abuse of a relationship of authority, trust or dependence
• are mistaken about the nature or purpose of the sexual activity
• are mistaken about the identity of a person or about whether they are married to a person
• only agreed because of fraudulent inducement, for example, if a sex worker engaged in a sexual activity for payment but was not paid 
• experienced any other grounds where lack of consent can be established.

What does age of consent mean?

A person cannot consent to sexual activity if they are under the age of consent.  

The age of consent is the age at which the law says a person can agree to sexual activity. If you are under the age of consent, the law says that you cannot legally agree to sexual activity, and any person who does something sexual with you has broken the law. 

What is the age of consent in New South Wales?

In NSW, the age of consent is 16. If you are 16 years old and above, you can legally have sex (or do another sexual activity) with another person who is 16 years or older as long as you both agree to it. However, even if a person is above the age of consent, it is a crime for a special carer of a young person (like a teacher, foster carer, step parent, religious leader, custodial officer, doctor or other health professional that the person is a patient of) to have sex with the young person while they are under 18.

In NSW, consent to a sexual activity with a person who is under 16 can be a defence to sexual crimes if both people are 14 or over, and the difference in age is not more than 2 years.

A person who is under the age of 14 can never consent to sexual activity.

If you are 24 or under and you have any questions about these laws, you can contact us for free and confidential legal advice here. 

Sending sexual pictures over a phone or internet

Sending a photo or video of a person doing a sexual act or showing their genital or anal region without their consent is image-based abuse, and it can be a crime. You can find out more on our page on image-based abuse. 

There are special laws that apply to sexting with someone who is under 18 – including sending and receiving images or videos of young people who are under 18 – even if it is consensual. You can find out more on our page on sexting. 

Has someone done something to you without your consent?

If you feel that someone has done something sexual to you without your consent, this is not okay, and it may be sexual abuse and a crime. You can find out more information about sexual abuse here. 

You can contact us here for free and confidential legal advice, 24 hours a day, 7 days a week. 

Have you done something to someone without their consent?

If you are worried that you have done something sexual to someone without their consent it is a good idea to talk to someone about what has happened and get legal advice. There are some exceptions that may apply to the law requiring you to say or do something to check if the other person consented.

You can contact us here for free and confidential legal advice, 24 hours a day, 7 days a week. 

Want to find out more?

You can also contact the services listed below to talk about anything relating to sex including safe sex, and what is considered normal or healthy in a relationship. They are not the police or a government department, and you do not have to give them your name and details if you don’t want to. 

Family Planning NSW is a sexual and reproductive health clinic and education service for all people living in NSW. They have clinics in Newington, Newcastle, Penrith, Dubbo and Fairfield as well as outreach locations.  

You can call these clinics Monday – Friday 8.30am to 5.00pm:  

• Newington: (02) 8752 4316 
• Newcastle: (02) 4929 4485 
• Penrith: (02) 4749 0500 
• Dubbo: (02) 6885 1544 
• Fairfield: (02) 9754 1322 

1800RESPECT provides free counselling, information and support for people who have experienced sexual assault or domestic and family violence. You can call them on 1800 737 732, 24 hours a day, 7 days a week.