Sex

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

Deciding to have sex with someone is a big decision. If you think that you are ready to have sex, it is important that you know what the law says about how old you have to be to be able to legally agree to have sex.

Before you have sex, it’s a good idea to talk to a health professional or a trusted adult about how to practice safe sex and to make sure you are fully aware of the risks of practising unsafe sex.

Remember, it is never okay for someone to force you to have sex without your permission – you have the right to say no at any time.

What does age of consent mean?

The age of consent is the age at which the law says you can agree to have sex.

If you are under the age of consent, the law says that you cannot legally agree to have sex, and any person that has sex with you has broken the law.

In NSW, the age of consent is 16. If you are 16 years old, another person can have sex with you if you agree to it (unless they are your carer or supervisor—see section on sex with a carer or supervisor below).

BUT, there is a legal defence available to you if you have sex with another person who is 14 or 15 years old if you are less than 2 years older than them and the other person agreed to it. According to this defence, if you are aged 14-16 years old, you can legally agree to have sex with another person who is less than 2 years older than you (as long as you both agree to it).

If you have a question or want some legal help about the age of consent, you can contact us here.

What does consent mean?

“Consent” means giving your free and voluntary agreement to sex. It is never ok for someone to assume you have given consent or to force you to keep going if you want to stop.

A person does not give their consent if they:

• do not have the capacity to consent due to age, or a mental or physical impairment;
• are asleep or unconscious;
• are threatened, forced or afraid;
• are restrained against their wishes;
• are tricked or mistaken about the nature of the act, or who the other person is; or
• are tricked into thinking the other person is married to them.

Also, in some cases, you can argue that you did not give consent because of another factor. For example, if you:

• are significantly intoxicated or under the effect of drugs; or
• are forced due to the position of authority by another person.

What do we mean by sex?

Sex means:

1. When a penis, finger, object or any part of a person is partially or fully inside another person’s vagina or anus; or
2. Any kind of oral sex.

Sex does not involve kissing or touching if there isn’t penetration of the mouth, anus or vagina. However, please be aware that other sexual activity that doesn’t technically involve penetration may be considered sexual touching or a sexual act, and there are laws that apply to this kind of behaviour too.

There are also special laws that apply to filming, photographing or sharing sexual images online or by phone. For more information about these laws please see our page on sexting.

Sex with a carer or supervisor

It is a crime for a person who is caring for you, supervising you or has authority over to have sex with you while you are between the ages of 16 to 18.

There is an exception to this. If you are aged 14-18 years old, there may be a legal defence that applies. According to this defence, if you are aged 14-18 years old, and the person in a position of care or authority over you is less than two years older than you, you can legally agree to have sex with them.

Some examples of people who are in a position of care or supervision over you would include your teacher, sports coach, youth worker, counsellor, foster carer, religious instructor, health professional, or police officer.

What happens if someone breaks these laws?

If someone is found guilty of breaking the laws around age of consent, they may be charged with a serious criminal offence, sent to jail and placed on a public sex offender registry.

The public sex offender registry is a list of adults who have been found guilty of a sex crime. Registered sex offenders are required to keep the police informed about their personal details and whereabouts.

Talking about safe sex

Deciding to have sex with someone is a big step. Remember that the decision is up to you. If you feel pressured to have sex, or if you’re not sure you want to, you can say no. The other person must respect your choice. If they try to have sex with you without your consent, they are committing a crime.

If you are thinking about having sex, please be aware of the risks that are involved with unsafe or unprotected sex. These risks include:

• getting a sexually transmissible infection (STI) like chlamydia;
• getting a blood borne virus like HIV; or
• unplanned pregnancy.

For information about how you can protect yourself against the risks of unsafe sex, you can speak to your GP or contact Family Planning NSW on 1300 658 886 or visit their website here.

Important contacts

You can contact any of the services provided below to talk about anything relating to sex including safe sex, if you’re not sure what is considered normal in a relationship, or if you are worried you might be pregnant.

You do not have to give them your name if you don’t want to.

•  Kids Helpline provides free and private counselling to young people up to age 25. You can talk to them about anything that’s affecting you at any time, day or night on 1800 55 1800.
•  1800Respect is a national helpline, providing counselling, information and support. You can call them on 1800 737 732, (available 24 hours a day, 7 days a week).
• 1800MYLINE is a national helpline for people needing counselling advice or referrals to helpful services. You can call them on 1800 695 463 (available 24 hours a day, 7 days a week).
• Family Planning NSW runs a hotline to provide information, advice and options for issues including contraception, pregnancy, sexual health and health relationships. You can call them on 1300 658 886, Monday – Friday, 8.30am-5pm.  

If you are confused about the law (it is confusing so don’t worry), please contact us here.