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.

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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 agreement. A person does not freely and voluntarily agree if they are pressured or threatened, if they are asleep or unconscious, or if they do not say or do anything to communicate consent. 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 these resources:

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. 

The law says you must know or have reasonable grounds for believing that the other person consents to the sexual activity. This generally means 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.

Situations where a person can’t consent

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

  • don’t have the capacity to consent, including because of age or cognitive incapacity
  • are unconscious or asleep
  • consent because they’re scared of the other person or because the other person has threatened them or another person 
  • consent because they’re unlawfully detained
  • consent because they have made a mistake about the identity of the other person, or the nature of the act.

Even if a person appears to consent to a sexual activity, there are some other situations where that consent may not be valid, including:

  • if they are substantially affected by alcohol or any drug
  • if they are intimidated or coerced
  • if they consent because of the position of another person (for example, the other person is in a position of authority)

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.

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 Victoria, 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. 

In Victoria, consent to a sexual activity with a person who is between the ages of 12 – 15  can be a defence to sexual crimes if both people are 12 or over, and the difference in age is less than 2 years.

A person who is under the age of 12 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. 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.

Family Planning Victoria is a clinic that provides sexual healthcare (safe sex) services and advice. They have clinics open from Monday to Friday, 9am – 5pm, in Box Hill and Melbourne CBD.  

You can contact these clinics through the details below:

Box Hill 

  • Tel: 03 9257 0100 or Freecall 1800 013 952 
  • Appointments: Call reception on 03 9257 0100 or book online.

Melbourne CBD

  • Tel: 03 9660 4700 Freecall 1800 013 952
  • Appointments: Call reception on 9660 4700 or book online.

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.

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