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Sex and the Law
Becoming sexually active is a big step, so it's important that you understand your legal rights and obligations when it comes to sex , and know where you stand.
Much of the content on this page has been reproduced, with permission, from the Legal Service Commission of South Australia's pamphlet: 'Sex, Consent and the Law '.
Additional information can be found in the Domestic Violence section of this website.
- What Is Consent?
The word consent, when used in reference to sex, refers to someone freely and voluntarily agreeing to take part in a sexual activity. It also means taking responsibility for ensuring that the person you're with is comfortable and agrees to have sex with you. You have the right to consent to any sexual activity you want to take part in. You also have the right to refuse consent and have your partner respect your refusal.
If you are manipulated, threatened or forced into sex, then you have not consented. If you're asleep, or if you're so drunk or drugged that you don’t know what's happening around you, then by definition you haven't consented. It's physically impossible for a person give consent to sex if they're asleep, incoherent or unconscious.
Each and every time you do anything sexual - from touching and kissing to having sex - you must have the other person’s consent, from the start of the activity to its finish. Never assume that a person will consent to sexual activity because they have said yes previously, because of their reputation, or because of how they dress or behave. Always ask, and always assume that silence means 'no'.
If you'd like more information about the concept of consent, or feel that someone has not respected your right to say no, then you might want to talk to someone. A good place to start would be the University's Counselling Service .
The video below illustrates the concept of consent in different ways.
- Age of Consent
In South Australia, the age of consent is 17. This means that it's against the law to have sex with someone under the age of 17, even if they want to have sex with you. In situations involving sexual relations between adults and young people under their supervision, the age of consent is 18.
The law about consent can be complex, so please ask for support and advice if you are unsure about the details.
- Sexual Assault Versus Consent
Checking in with your partner and getting consent can feel awkward, especially if you are just getting to know someone and are feeling nervous. The easiest and best way to make sure you and your partner are both consenting to sexual activity is to talk about it, and to pay attention to body language. You can say things like "Would you like to...", "Are you feeling comfortable?" or "Do you want to keep going?"
In terms of body language, there are some things you can look for. Is your partner getting involved in the act, and do they seem to be enjoying it as much as you are? If your partner is silent, still, looking away or crying, then something isn't right. Stop what you're doing and ask if they're okay, and be prepared to stop all sexual activity if they ask you to. The most important thing is to be respectful.
There are many reasons why some people expect sex . However, it's important to know the following things:
- Just because someone consents to kissing, that doesn't mean they consent to taking things further.
- Just because you want to go further, that doesn't mean the other person has to.
- Just because you've had sex with someone before, that doesn't mean they have to have sex with you again.
- Just because someone is flirting with you, that doesn't mean they want sex.
- Just because everyone thinks you should have sex, that doesn't mean you have to.
Whether you've just started to date someone or have been in a relationship for a while, the rules about consent are always the same. Remember that sex is meant to be enjoyable for both partners. If you care about the other person, don't pressure them to consent, and don't assume that they're consenting. Always check, talk about it and look for body language cues. You can withdraw your consent at any time - even in the heat of the moment. So can your partner.
Being sexual with someone without their consent is sexual assault. Sexual assault refers to a number of criminal offences including rape, indecent assault, unwanted sexual behaviour (e.g. touching or fondling) and child pornography. It's an ongoing social problem that affects many people.
If you commit sexual assault, it can lead to imprisonment and registration as a sexual offender. A criminal record for sexual assault will seriously affect your career, work and travel prospects.
All forms of sexual assault are an abuse of power - that is, they involve taking advantage of another person's vulnerability. Factors that may increase a person's vulnerability include:
- Being young, inexperienced or isolated from family and friends.
- Being nervous, scared or embarrassed.
- Having low self-esteem.
- Being drunk or under the influence of drugs.
- Not being fluent in the local language.
- Being an employee.
Sexual assault can happen to anyone, and it is never justified. There is never an excuse for committing sexual assault.
- What About Sexting?
Using your mobile phone to take and send sexually explicit pictures of yourself can lead to serious legal consequences. Think carefully before you take and send photos of yourself or of your friends, even if they agree. If you or your friends are under the age of 17, just don't sext, as it can leave you vulnerable to a charge of creating or distributing child pornography.
Pictures you send electronically become part of your 'digital footprint' and can last forever. This can damage your future employment prospects and relationships, and can even result in criminal prosecution.
- Cyber Safety
Given the nature of the internet and related technologies, it's very important to be careful about your cyber safety. This means being careful about what you say or do in relation to others online, and about what you post online, either openly or privately - especially if what you post is associated with your real name. Always think carefully about whether to allow someone to take photographs of you that you would not want anyone else to see.
- Seeking Advice & Support
If you have experienced sexual assault or you are unsure about whether you consented to a sexual activity, you can always seek confidential advice and support:
- Yarrow Place (1800 817 421) offers free and confidential counselling and medical service for victims of rape and sexual assault
- SideStreet (8202 5871) offers counselling support and information to young people who have experienced violence and sexual abuse
- Legal Services Commission (1300 366 424) offers free and confidential legal advice over the phone or by appointment.
- Police (131 444) The Sexual Crime Investigation Branch (SCIB) is a specialist investigation service for the prevention, detection and investigation of sexually related crimes.