What is sexual assault?

Sexual assault is a legal term used to describe a range of sexual offences, from showing indecent images to another person, to kissing or touching them, as well as penetration of the person’s body with a body part or object.

If someone:

  • Does something sexual that makes you feel uncomfortable; or
  • Touches your body when you do not want them to, it may be a sexual assault

Different kinds of touching or behaviour might be sexual assault, it depends on:

  • Where and how it happens;
  • What the perpetrator is thinking when they do it;
  • The age of the victim;
  • What the victim thinks; and
  • What a reasonable person would

‘Sexual assault’ is often called other names like:

Sexual abuse, rape, indecent behaviour, indecent assault, sexual molestation, incest, child sexual abuse, child sexual assault, touching, ‘feeling up’, sexual harassment.

The legal term for all these kinds of offences is ‘sexual assault’.

If someone does something to make you feel that you have been assaulted, you can seek help from health and counselling services, including sexual assault services. This applies even when you don’t want to report to police, or if you have reported to the police, but they do not believe that a crime has been committed.

If you are not sure whether you have been sexually assaulted or not, you can contact a sexual assault service or legal service. There are specially trained people who can help you understand what has happened to you and what your options are.

Some people blame victims or make victims feel that they somehow asked to be raped because of how they looked or dressed, or where they were at the time. This is not right. It is never a victim’s fault.

Sexual assault is always a crime. It is most commonly committed against women and children by people they know, such as boyfriends, fathers, neighbours, step-fathers, bosses, uncles, husbands or partners.

Sexual assault is a crime where the attacker uses force, abuse of power, violence, threats or tricks to control or take advantage of the victim.

Sexual assault is grouped into different types of offences.

Offence What does it mean? (some examples)
Act of Indecency A person shows you their penis or masturbates/touches their penis in public;

A person makes you look at porn (sexual pictures or videos) in a magazine, on a computer, phone or on television;

A person sends your naked picture to other people or posts it online (sexting or cyber-bullying may fit in this category but are also a separate offence); or

Any other sexual act that would make most people feel very uncomfortable.

It is not necessary to show that it caused fear/distress.

Indecent Assault A person touches you in a sexual way on your breasts, vagina or anus;

Includes touching over the top of or under your clothing that does not penetrate in any way;

Kissing; or

A person makes you touch their penis, vagina or anus.

Sexual Assault A person has sexual intercourse with you when you do not want to or you cannot consent; and

That person knows you do not want to or cannot consent, or has no reasonable grounds to believe you consented.

Aggravated Sexual Assault A person has sexual intercourse with you without your consent in aggravating circumstances (see next two pages).

What does ‘sexual intercourse’ mean?

Sexual intercourse is where:

  • A person puts their penis, fingers, hand, tongue or an object into your vagina or anus; or
  • A person puts their penis or vagina or anus on your mouth; or
  • You put your vagina, anus or mouth on someone else’s penis, vagina or

The law says that sexual intercourse involves some type of penetration by genitals or body parts into the mouth or genitals of another person. If an object is used to penetrate the vagina or anus it is also sexual intercourse.

If you are unsure about what has happened, it’s a good idea to talk to a sexual assault counsellor.

Is it only called ‘sexual assault’ when someone has sexual intercourse with me when I don’t want to?

No, sexual assault can also include:

  • Getting or giving oral sex when you do not want to;
  • Being forced to put objects into your own vagina or anus;
  • Being forced to do these things to another person, animal or object;
  • Penetration or something being inserted into your body or the other person’s body;
  • Being forced to have sex or perform sex acts on another person who might also be a victim;
  • Being made to perform sex acts on an animal or object or weapon of some

If a person attempts to do any of these things to you they can be charged with an offence.

Tricking or convincing a vulnerable person, such as a child or someone with a disability to do any of these things is also sexual assault.

What are aggravating circumstances?

Sexual assault can be even more serious when it includes ‘aggravating’ factors. A person can be charged with ‘aggravated sexual assault’, for example if:

  • They physically hurt you when they sexually assault you;
  • You are under 16 years old;
  • They use a weapon during the sexual assault;
  • Other people are present and/or involved in the sexual assault;
  • You have a severe disability;
  • The abuser is an authority figure like a teacher, carer or religious leader.

Usually more serious penalties or punishments are given to a person who is found guilty of an aggravated sexual assault.

What is consent?

Consent is freely agreeing to do something. In this section of the booklet we will look at what it means to:

  • Consent to sex;
  • Not consent to sex;
  • Not have capacity to consent to sex;
  • Give consent and then withdraw it.

If you are unsure about these issues you can call a lawyer for some free legal advice or speak to a sexual assault counsellor. See Contacts for contact information.

Consenting to have sex or sexual contact means:

  • No one pressuring you;
  • No one forcing you;
  • No one threatening you or threatening someone or something you love;
  • You want to have sex and have not changed your mind;
  • You have the ability to stop when you want;
  • You are 16 years or older;
  • You are awake and conscious;
  • You are not overly affected by alcohol or drugs;
  • You do not have a cognitive impairment that affects your ability to consent;
  • The person you have sex with has not lied about their identity or led you to believe they were someone else.

How do you know when consent is not given?

A person knows there is no consent if:

The lack of consent is clearly communicated:

For example you say: ‘I don’t want to!’, ‘Stop’, ‘Get off’ or, express yourself with actions like trying to push the perpetrator off, running away etc.

They are ‘reckless’ as to whether consent is given:

When the perpetrator does not care that there may not be consent, for example:

  • You are asleep, under the influence of drugs or alcohol yet they go ahead and have sex with you anyway.
  • You were scared, numb, ‘paralysed by fear’, pressured or threatened – you did not say yes but also did not say no. Silence isnt a yes.
  • You have previously consented because you are or were in a relationship but have not agreed to sex this But the perpetrator goes ahead with the sex anyway.

You are not able to legally consent

If you are under the age of 16 you cannot legally consent to sex. If you are a person with a cognitive impairment you may also be unable to legally consent. Even if you agree or ‘go along with’ the perpetrator your consent is negated by the fact that you are not legally allowed to give consent. This means it is like you did not consent at all.

A reasonable person would not believe consent had been given

The words ‘reasonable person’ are used as a legal test to say that an ordinary person in the perpetrator’s position with the same knowledge of the victim would also think that consent had not been given. This test is important in cases where the victim may have been affected by drugs or alcohol or where the victim is asleep or unconscious. A reasonable person would not assume that a person who cannot speak, open their eyes or stand up could consent to sex.

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