Some common questions

If I am under 16 can I have sex if I consent to it?

The age of consent in NSW is 16 years. The law says that a person under 16 cannot legally consent to sexual contact, even if they want to. Any sexual contact with someone under 16 is a crime in NSW and the other person can be charged with an offence.

However, if two people under the age of 16 have sex and both want to, the police will not usually treat this as a crime.

If you have more questions about this and are under 16, see the Contacts page for the National Children’s and Youth Law Centre.

Charlize’s Story: ‘I was only 13 when my 17 year old boyfriend had sex with me. I was really upset after it happened so I told my mum. She took me to the hospital and helped me report to the police. The police explained that because I am only 13 I could not legally consent to having sex — it was sexual assault what he did to me and it was ok to be upset about it.’

What if I was too ‘out of it’ to stop him?

You cannot consent to sex if you are asleep, unconscious, drunk, or affected by drugs (it doesn’t matter if the drugs are legal or illegal). You have to be awake, conscious and able to think clearly to consent to sex.

Will I get in trouble with the police if I admit I was using an illegal drug at the time I was raped?

Not likely. The police will usually only charge you with drug offences if you have the drugs in your possession, if they see you taking it in public, or if they see you selling it.

When you are the victim, police should be focused on helping you. If you are unhappy with how the police have treated you, you could make a complaint (see ‘complaints about lawyers, judges and police‘ or contact your local community legal centre).

If you report a sexual assault that happened when you were drunk or high, remember to ask for a blood test to prove you lacked capacity to consent.

Katie’s Story: ‘I took some Ecstasy pills while I was out clubbing. I was so out of it I didn’t know what was happening with this guy – one minute we’d been dancing in the club then the next thing I remember I was waking up without my underwear in a strange apartment. I was sure he had sex with me and I had not wanted to. All I could remember about the night before was crying on the bed. I was scared if I went to the police they would get me in trouble for being on drugs.’

Is it still sexual assault if I agree to sex but then it goes further?

A sexual assault can occur any time including during or immediately after consensual sex. It is important to tell police about any consensual sex as this can be relevant to your matter for forensic reasons (like when they take swabs for the SAIK). Talk to your sexual assault worker and they can help you understand what information the police might need to know.

Some examples of sexual assault where you may have agreed to some sexual contact but not all, include:

• You agree to only have protected sex, i.e. using condoms or other contraceptives to prevent pregnancy and Sexually Transmissible Infections (STIs) but you are then forced to continue unprotected;
• You only agree to kissing or touching but are forced to have penetration;
• You agree to vaginal sex and are forced to have anal sex.

The law says that if someone carries on having sex with you ‘recklessly’ (meaning without considering whether you are consenting or not) then it may be sexual assault. For more information see ‘What is consent?’.

Cherie’s Story: ‘I met this guy on holidays. We got along well and after a few drinks I went to his hotel room. We had sexual intercourse. Then later while we were hanging out in his room he started pressuring me to give him oral sex. He pushed me off the bed and shoved his penis in my mouth. I said no and he just kept grabbing my hair and telling me to do it, he was calling me all horrible names like “slut” and “whore”. I wasn’t sure if it’s rape when you have already had sex and then it goes further.

The sexual assault worker said what that guy did was sexual assault and that I could withdraw my consent to sex at any time during sex. She helped me talk to the police after the physical examination was finished.’

Is it still sexual assault if we are married or in a relationship?

Being married, de facto or in a relationship does not mean your partner can have sex with you without your consent. It is still sexual assault if your partner has sex with you when you do not want to, or if they keep going after you have asked them to stop.

Mary-Anne’s Story: ‘I was in a relationship for 4 years. He forced me to have sex at times when I didn’t want to and then threatened to take the baby and disappear if I ever went to the police. I didn’t fight him off because I believed he would hurt the baby or me. I had seen him kick the dog before, and punch holes in the walls. He was really violent.

I finally told the police and they said what he did was sexual assault and it was also domestic violence. They took out an AVO to protect me and the kids, and they charged him with the other stuff. My doctor even gave the police some notes to help the court case. I didn’t realise I could be safe again.’

Is it still sexual assault if I’m in a same sex relationship?

A victim’s legal rights and the process after sexual assault is the same regardless of who perpetrated the sexual assault.

Research has shown that where sexual assault happens to an LGBTIQ person it is even less likely that the victim will report to police due to fears about social stigma of being identified as LGBTIQ.

Erin’s Story: ‘I met her at a friend’s party. She seemed really nice and asked me back to her place. We started kissing but then she kept pushing for more. I was scared, I said no, I thought we were just getting to know each other. She pushed my legs apart and went down on me – I was shocked and it was not what I wanted. Afterwards she said that if I told anyone she would make sure my family find out that I’m gay. She knows I haven’t told them yet.’

My boss has been sexually assaulting me at work. Can I tell the police?

Yes, you can report to the police. Sexual assault is a crime no matter whether it happens at home, work, or somewhere else. You may also find it useful to get some confidential legal advice on your workplace rights and employment law. See Contacts for contact information.

Is it still sexual assault if I’m a sex worker?

All sex requires consent – even if you are being paid to have sex.

Sex workers can be at high risk of sexual assault because of their work and the potential lack of safety for them when they are working.

If reporting to the police remember you do not have to answer questions or give details about:

• Your sex life prior to the sexual assault;
• Your dating history; or
• Your sexual experience/inexperience, unless it is relevant to your matter.

The police should only consider relevant facts and circumstances. Your personal history is not on trial.

Josie’s Story: ‘I am a sex worker so I guess he thought he could do anything he wanted. I said no and tried to stop him but he wouldn’t. The police will not care that a woman like me got raped, will they?’

If you experience difficulty reporting a sexual assault to the police, contact a sexual assault service, a community legal centre or the Sex Workers Outreach Project. See Contacts for contact information.