Consent And The Law: Everything You Need To Know

Change is in the air, people! Australia has made some huge changes to make consensual sex safer by following NSW and Victoria’s landmark affirmative consent model.

We know the legal jargon surrounding these new sex and consent laws might make your head spin. But let’s break it down, because it’s really important to know your rights and responsibilities under the sheets.

The key things to remember are:

• Consent is mutual. Everyone has to agree to participate. Keep a look out for signs to pump the brakes, this might be your partner saying something like, ‘I’m not sure about this’ or ‘Can we take a break for a bit?’.

• Consent once does not mean you have consent always. Just because that person was keen last time, doesn’t mean they automatically consent in the future. Make sure you’re checking-in and asking every time, ‘Are you okay?’ and ‘Are you still keen?’

• Consent is ongoing. Alright, somebody has said ‘yes’ to sex with a condom, but that’s it. If you’re keen for anything to change, make sure you don’t make that change without them saying ‘yes’ first.

• Consent can be withdrawn at any time. Yep, even if you’re in the middle of having sex!

• Consent can’t be given if you’re under the age of 16, if you are intoxicated, or if there’s a significant power imbalance (eg. a student-teacher relationship).

• Consent is definite. No ifs, ands, buts or maybes about it. An enthusiastic yes is the only way to get proper consent. If you find yourself thinking ‘Well, they didn’t say ‘no’…’  then it isn’t consent.

With the help of University of Wollongong Law Professor, NSW consent legislation expert Dr Julia Quilter and Consent Labs Executive Director Julia Cooper, we’ve answered some of the pressing questions you might have about consent.

“What Is Affirmative Consent?”

Simply put, affirmative consent is giving or getting permission before any and all forms of sexual activity.

Affirmative consent laws are setting a new standard for communication and consenting to sex and sexual activity. Consent is no longer considered to be the absence of saying no, rather there needs to be a clear indication that you are all giving and getting consent.

Affirmative consent makes it really clear — all these things need to happen for it to be okay:

Firstly, everyone involved must be over the age of 16.

Secondly, there must a clear indication of consent. This doesn’t mean you have to sign a contract with, ‘I hereby agree to partake…’, but it does mean you need to be sure, without a doubt that you’re getting a definite ‘yes’ – not a ‘maybe’, or ‘I think so’. It can be as simple as asking ‘Do you want to try…?’ (This is your cue to fill in the blanks… all sexual acts require consent).

And lastly, consent must be given freely and voluntarily. This means:

• No-one involved is intoxicated.

• There are no major power imbalances (eg. a teacher-student relationship).

• There’s no pressuring involved. No threats, no bargaining and none of that, ‘you would if you loved me,’ or ‘everyone else is” BS.

Remember, people can signal, ‘no’, even if they haven’t said it outright. If they aren’t enthusiastic, if they’ve gone still or rigid, if they’re facing away from you, or covering themselves up, it’s a clear sign that there is no enthusiastic and affirmative consent happening.

“Is It True That You Can Change Your Mind About Consent?”

Yes. You can withdraw consent at any time during sex.

Maybe you were keen at first but now you’re no longer feeling it, or that new position doesn’t feel comfortable. That’s okay!

“Affirmative consent means that consent can be withdrawn at any time and for any reason,” Julia Cooper says.

“So, Does That Mean You Can Say The Consent You Gave At The Time Wasn’t Genuine?”

Affirmative consent laws don’t mean you can retrospectively withdraw consent if you were genuinely on board at the time – there’s a difference between regretting a valid decision that you’ve made and a non-consensual act.

But it’s important that the consent is genuine, and for this to happen it needs to meet certain requirements.

What ‘genuine’ means is: consent needs to be given freely and without coercion.

It also means that no one was intoxicated; that everyone involved is over the age of 16; and that there aren’t any major power imbalances in the situation.

If the situation didn’t meet these criteria, then you’re well within your right to say that the consent wasn’t genuine, because it wasn’t.

“Say I’m Going To A Party, Can I Trust The Consent I Might Be Giving Or Receiving Even If I And Others Are Planning On Drinking Alcohol And Taking Drugs?”

Legally? No. A person cannot give their consent if they are affected by alcohol or other drugs.

According to Dr Quilter, “between 50-80 per cent of sexual violence cases involve either drugs or alcohol, and there is a strong correlation between sexual offences and alcohol and drug intoxication”.

Alcohol and drugs are never an excuse for sexual violence, and someone’s ability to consent can be impaired when they’re under the influence. So, it’s important to recognise when the person you’re with isn’t able to clearly and enthusiastically express that they want to have sex or engage in any other sexual acts.

We encourage you to always err on the side of caution — any indication the person you are with might be intoxicated, in any way, is a sign to slow down. You can always catch up another time, when you’re both in a position to consent.

“My Partner And I Both Have Nudes Of Each Other On Our Phones. Should We Have A Conversation About What To Do With The Pics In Case We Break Up?”

Definitely! It’s important to have these conversations and make sure you are on the same page.

Julia Cooper suggests you get clarity on how pictures are going to be stored, and how they’re going to be deleted, or what happens when a relationship comes to an end.

A couple might chat and say, ‘I’d like us to send each other some nudes, but wanted to check you feel comfortable setting some boundaries?’

Consent laws extend beyond physical acts, and there are laws that prevent the distribution of intimate images without consent.

Just because someone sent you a nude, doesn’t mean they are giving consent for it to be shown to anyone else.

It’s a criminal offence to distribute or record without consent.

“I’ve Heard About New Laws To Stop ‘Stealthing’. What Do These Changes Mean For Me?”

[Editor’s Note: “Stealthing” is a colloquial term for a sexual offence where someone non-consensually removes a condom during consensual sex.]

When considering legislation around stealthing, it all comes back to the idea (and law) that consent is ongoing, and just because someone has consented to one thing (eg. sex with a condom), doesn’t mean they’ve consented to sex without one. And to remove the condom without their knowledge is a violation of that consent.

“How can you give consent if someone has removed a condom during a sexual act without asking you, or tried to do it without you knowing?” Dr Julia Quilter says.

The answer is: you can’t.

In almost all Australian states and territories, stealthing is a serious criminal offence. Informed and ongoing consent is the only way to make sure genuine consent has been given.

With the introduction of those new stealthing laws around the country, we’re taking a step in the right direction in shifting our culture around consent.

“The public and police are more aware that stealthing is a serious crime with very serious effects,” Julia Cooper says. “I believe that this awareness and further education will change the status quo.”

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If you or someone you know has been impacted by sexual assault, you can find support via the links below.

1800 RESPECT — National domestic family and sexual violence counselling service
https://yla.org.au/ – Youth Law Australia
1800 184 527 —  QLife
Online Safety — E Safety Commissioner