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.

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 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:

• Kids Helpline – What is consent?
• Legal Aid WA – Sex and 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. 

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. Even if someone does not physically resist sexual activity it does not mean that they have consented. 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 that under the following circumstances, a person does not consent:

• If they are unconscious or seriously intoxicated;
• If one person is under the age of 18, and they are under the other person’s care, supervision, or authority; 
• If the person has a serious mental or intellectual disability that affects their ability to understand what is happening; 
• If the consent is obtained by force, threat, intimidation, deceit or fraud.

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.

What is the age of consent in Western Australia?

In Western Australia, the age of consent is 16 years old.  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 you are above the age of consent, it is a crime for someone who is caring for you or supervising you (like a teacher, youth worker, foster carer, step parent, religious leader, etc) to have sex with you while you are under 18. It is also a crime for a person to have sexual intercourse with a close family member, including a parent, child, sibling, grandparent or grandchild – even if there is consent.

In WA, consent to a sexual activity with a person who is under 16 can be defence to sexual crimes if the person who had sex with the under 16 year old believed on reasonable grounds that the person was 16 or over AND the person was not more than 3 years older. For example, if Anna is 15 years of age and agrees to have sex with Tom who is 17 years age, and Tom had good reason to believe that Anna was 16 years of age, then Tom would not be guilty of the crime of having sex with a person under 16 because he can rely on this legal defence.

However, a child under the age of 13 can NEVER consent to sexual activity. 

If you are 24 or under and you have any questions about these laws, please 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.

Who can you talk to?

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

You can also contact the services listed below to talk about anything relating to sex including safe sex, what is considered normal in a relationship, or if you are worried you might be pregnant. 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:

• Kids Helpline: You can call the Kids Helpline on 1800 55 1800 for free and private counselling (available 24 hours a day, but there can be a wait to get through). They are happy to talk to young people between the ages of 5-25 years about anything that’s on their mind. You can also email them or chat online at: http://kidshelpline.com.au.
• Sexual Assault Resource Centre: free 24-hour 7 days a week emergency service that offers help and support to any person aged 13 years and over who has experienced sexual assault either recently or in the past. You can call the Centre at any time on (08)  6458 1828 or 1800 199 888. The Centre also has some online resources on sexual assault which you can access here. They also have some information on what you can do if you have been sexually assaulted which you can access here.
• 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. 

Sexual Health Quarters provide sexual healthcare (safe sex) services and advice. You can call Sexual Health Quarters on (08) 9227 6177. For more information, visit their website at: http://shq.org.au/.