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 without your consent. There are also some situations where a person can’t give consent. Remember, you always have the right to say no at any time.

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 means free and voluntary agreement. A person does not freely agree if they are pressured or threatened, or if they are asleep or unconscious. We explain more about what consent does, and doesn’t, look like below!

You must give and get consent before doing any sort of sexual activity with another person, not just penetrative sex. Consent is important for all people, of all sexualities and in all kinds of relationships.

Consent needs to be given each time. You need to make sure you have consent each time you do a sexual activity with another person. 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 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 this resource: Kids Helpline – What is consent?

When do you need to make sure someone consents?

You need to have consent before doing any kind of sexual activity with another person. This includes kissing or touching someone, 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.

What does consent look like?

Consent must be continually given and received. You can’t ever assume that someone has consented, even if you’re in a relationship with that person, or they have consented to something in the past. 

In South Australia, the law says that if you are aware of the possibility that the other person might not be consenting to the sexual activity or has withdrawn their consent to the activity, and you:

• decide to continue to engage in the sexual activity anyway; or 
• fail to take reasonable steps to check whether the other person does consent, 

then you may be committing a crime. You can also commit a crime if you do not give any thought to whether the other person is consenting or has withdrawn their consent. 

This means that you should take positive steps to find out if the other person consents to a particular activity.

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 ‘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 make sure they consent.)

It is best to think of consent as an enthusiastic yes. Remember, consent can also be withdrawn at any time.

What consent doesn’t look like

Just because a person says ‘yes’, it does not always mean they have consented. The law says a person does not consent if they:

• are threatened or forced;
• are restrained against their wishes;
• are asleep or unconscious;
• are affected by alcohol or another drug to the point that they cannot consent;
• are affected by a physical, mental or intellectual condition to the point that they cannot consent;
• cannot understand the nature of the sexual activity; or
• are mistaken as to the nature of the sexual activity or as to the identity of the person they are engaging in the sexual activity with. 

A person can withdraw their consent at any time. If a person changes their mind, or says something like ‘stop’, it is a crime to keep going.

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

What does age of consent mean?

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.

In South Australia, the age of consent is 17. If you are 17 years old and above, you can legally have sex (or do another sexual activity) with another person who is 17 years or older as long as you both agree to it. 

There is one exception to this – if someone is in a position of authority over you (including people like a teacher, parent, carer, religious leader, doctor or employer) then you have to be at least 18 years old to consent to sexual activity with them.

In South Australia, consent to a sexual activity with a person who is between 16 and 17 years old can be a defence to a sexual crime if:

• you are under 17 years old; or 
• you reasonably believed that the other person was at least 17 years old.

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 or threatening to send a photo or video of a person doing a sexual act or showing their breasts, 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. 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.

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.

SHINE SA is a sexual and reproductive health clinic and education service for all people living in South Australia. They have clinics in Adelaide and Woodville.

You can call these clinics Monday – Friday 9.00am to 5.00pm: 

• Hyde Street, Adelaide: (08) 7099 5320
• Woodville: (08) 8300 5300

You can also talk confidentially to a SHINE SA nurse for free on their Sexual Healthline on 1300 883 793, which is open Monday to Friday 9.00am to 12.30pm.

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.