Consent must be given for any of the above sexual acts as well as any kind of sexual touching.

If sexual intercourse takes place without consent , the perpetrator can be charged with an act of Sexual Assault. If they touch a person without consent they can be charged with an Act of Indecency.

When is Consent Negated?

Engaging sexually with another person who cannot freely give consent is a crime. People cannot freely give consent if they are under the influence of substances or if they are asleep or physically helpless and in a range of other circumstances. The law makes it clear that a person cannot give consent if that consent:

• is caused by the infliction of violence or force on the person, or on a third person who is present or nearby.
• is caused by a threat to inflict violence or force on the person, or on a third party who is present or nearby.
• is caused by the use of extortion against the person or another person.
• is caused by a threat publicly humiliate or disgrace, or to mentally harass, the person or another person.
• is caused by a mistaken belief as to the identity of the other person.
• is caused by the effect of intoxicating liquor, a drug or an anesthetic.
• is caused by a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person.
• is caused by the abuse by the other person of his or her position of authority over, or professional or other trust in relation to, the person.
• Is caused by the person’s physical helplessness or mental incapacity to understand the nature of the act in reltion to which the consent is given.
• Is caused by the unlawful detention of the person.

(See Crimes Act 1900, Part 3 Sexual Offences, Section 67, R83-Effective 24/2/2013, pp 55-56)

If consent is given in the above circumstance’s, the person’s consent is automatically negated and the person engaging with the person who is unable to consent, is committing a criminal offence.

What is the Age of Consent?

Sexual assault legislation differs in every state in Australia. In the ACT the age of consent is 16. Anyone who has sex with someone under the age of 16 is committing a criminal offence.

There is a defense to prosecution clause in the ACT legislation which can be enacted when there area two young people engaging in sexual intercourse and they are over the age of 10 and within two years of each other (for example, a 14 year old and a 16 year old), or in the instance that reasonable grounds can be established that the defendant believed the person they were having sexual contact with was 16 or older. In each of these instances however, each person must give consent, otherwise the defendant is considered to have committed a sexual offence.

There is no defense clause for a person who engages sexually with a child under the age of 10. Anyone who engages sexually with a child under 10 is committing a criminal offence.