Consent
What is Consent?
Consent is an agreement to participate in a specific sexual activity.
Consent is about more than just sex. It is about recognising that everyone has the right to make their own decisions about their own body.
Consent is feeling:
Confident
Safe
Respected
Comfortable
Enthusiastic
Informed
Self-determined
Consent is not being:
Forced
Afraid
Misled
Unaware
Confused
Threatened
Controlled
Free and Voluntary Consent
Consent must be given freely and voluntarily. This means YOU have the right to decide whether or not you want to engage in a specific sexual activity, with a specific person, in a specific context.
Your consent to a sexual activity will not be free and voluntary if:
You were physically forced or scared of what might happen to you or someone else (such as your sibling, friend or pet).
You were threatened, pressured or intimidated.
You were unlawfully detained (for example, you were locked in a house or car).
You were tricked into it (for example, you believed it was required for medical purposes or you thought the person was someone else).
The other person abused their authority over you (for example, they were a police officer, security guard or your teacher or employer).
The person changed to a different sexual act without your agreement.
The person refused to wear a condom or removed it during sex without your permission.
You were asleep or unconscious.
You were affected by drugs or alcohol to the extent that you could not freely agree.
You were filmed performing a sexual activity without your knowledge.
Consent cannot be inferred or assumed. It must be freely given and can be changed or taken away at any time.
Consent to sexual activity cannot be inferred from:
Social behaviour such as dancing or flirting
Kissing, touching or being naked
What you were wearing
Agreeing to go back to their place
Consent cannot be assumed. This includes:
Assuming consent to one sexual activity (such as oral sex) is consent for another sexual activity (such as vaginal sex)
Assuming consent is ongoing – consent given at an earlier time does not mean consent at a later time
Assuming it is okay because the other person has done this before with you or someone else
Assuming the other person is willing based on their level of intoxication
Assuming consent from silence, non-resistance or no response
Affirmative Consent
Affirmative consent means that each party involved in the sexual activity must take steps to ensure the consent of the other is obtained.
It is not enough to assume consent has been given. Consent must be active and demonstrated throughout the whole sexual encounter.
Consent can be given by words or actions, as long as they clearly show a willingness to engage in the sexual activity. This could include asking the other person if they want to have sex or looking for verbal or non-verbal cues such as body language or facial expressions.
It can be easy to misunderstand someone else’s body language or facial expressions, so it’s important not to make assumptions. If you’re not sure whether the other person is consenting, you need to ask.
Some words or phrases that indicate consent could include:
Yes
Absolutely
I want to
I want you to keep going
Don't stop
These words may be supported by non-verbal cues such as engaged smiling, nodding or maintaining eye contact.
Phrases or actions like the following mean they are not consenting:
Maybe
I don't know
I’m not sure
I don’t feel comfortable
I want to but not yet
Silence
Changing the subject
A failure to say ‘no’ does not mean someone is consenting. Silence is not consent.
Non-verbal and emotional cues that indicate a person does not consent include:
Pushing or pulling away
Shaking their head
Avoiding eye contact
Silence
Looking scared or sad
Crying
Not removing their clothes
Stiff body language
Lying motionless
Not responding to touch
Freezing
If you are not sure what the other person wants, then you should stop and talk with them about what they feel comfortable doing. Don’t make assumptions. If you are getting ‘mixed signals’ then it is a ‘no’.
Affirmative consent is an ongoing dialogue and can be removed at any time. Earlier consent does not mean later consent. Someone might initially want to have sex but then change their mind. If that happens, there is no longer consent.
Consent cannot be assumed because you are in a relationship, have had sex before or are lying naked in their bed. No one is owed sex and you are never obliged to have sex. If consent is not free and voluntary, it is rape.
Enthusiastic Consent
Enthusiastic consent means a positive expression of consent and ensuring that all parties are enthusiastically participating in the sexual activity.
For consent to be enthusiastic, everyone must actively show they are consenting. Permission to have sex is explicitly confirmed using phrases such as ‘Is this okay?’ or ‘Would you like to?’
When these questions are asked, it is not enough that the person does not say ‘no’. There must be a genuine ‘yes’ as well as enthusiasm and engagement that they want to continue.
Consent can be reflected by non-verbal cues, such as reciprocal touching and kissing, taking clothes off and looking relaxed or excited. However, verbal confirmation must still be sought.
Consent must be ongoing and you can stop at any time you feel uncomfortable. Consent to one sexual activity is not consent to a different activity.
Permission must be sought before you change the type or degree of sexual activity or position (for example, moving from kissing to genital touching or vaginal sex to anal sex). This could be done by asking:
Is this okay?
Do you want to keep going?
Do you want to stop?
Are you comfortable trying this?
I really want to … How does that sound?
Consenting to have sex with someone at one venue or time is not consenting to have sex with that person at another venue or time. Consenting to have sex with one person is not consenting to having sex with another person.
It is important to check in with your sexual partner and let them know you can slow down or stop at any time. You could say:
Are you sure this is okay?
We can slow down if you want to.
I’m only into it if you are.
For consent to be enthusiastic, communication must be open and voluntary. It is important that each person is respected when they say no, are unsure, hesitate or freeze. Enthusiasm for sexual activities is paramount.
Consent in the Law
It is against the law to sexually penetrate another person without their free and voluntary consent. This is called rape.
Sexual penetration means:
Vaginal, anal or oral penetration with a penis; or
Penetration of the vagina or anus with any body part (such as fingers or tongue) or with any other thing.
Rape is one of the most serious crimes. The maximum penalty in Queensland is life imprisonment.
It is also against the law to touch someone sexually without their consent, even if there is no penetration. This is called sexual assault.
Sexual assault could include kissing someone or touching their breasts, buttocks, genitals or another body part without their agreement. It is a serious crime punishable by up to 10 years in jail.
Age and Mental Capacity
Consent cannot be given if you are underage or do not have the mental capacity to consent. Even if you agree to have sex, your consent is negated in these circumstances. It is as if you did not consent at all.
The age of consent is the age at which the law says you can agree to have sex. In Queensland, the age of consent is 16.
If you are under 16 you cannot legally agree to have sex and anyone who has sex with you will have broken the law. Once you turn 16 you can legally have sex with someone who is 16 years or older (as long as you both freely and voluntarily agree).
If you cannot understand the nature of the sexual activity due to an impairment of the mind, then you may be unable to legally consent. An impairment of the mind occurs when you have:
An intellectual disability;
A brain injury or neurological impairment; or
A psychiatric disorder or severe mental illness.
You may still be able to legally consent to sex if you have one or more of these conditions. However, consent will be negated if the impairment substantially reduces your capacity for communication, social interaction or the ability to learn, so you need support in your daily life and are unable to understand the nature of the sexual activity.
Asleep or Unconscious
If you are asleep or unconscious you are unable to give consent.
This is the case even if:
You have had sex with that person before;
You agreed to have sex before you fell asleep or became unconscious; or
You fell asleep or passed out because you were drunk.
Example 1
Violence or Force
Consent is not free and voluntary if it is obtained by violence or force. This includes the use of force or against yourself, another person (such as a family member or friend) or a pet.
Violence or force does not necessarily involve the use of a weapon. It may not result in any physical injuries.
Example 2
Example 3
Threats or Intimidation
Consent is not free and voluntary if it is induced by threats, intimidation or a fear of bodily harm.
Threats and intimidation are not limited to bodily injury or violence, but can extend to other forms of harm such as blackmail, emotional harm or psychological violence.
Submitting to sex (for example, not protesting or physically resisting) because you are threatened or intimidated is rape.
Threats
Threats could include current or future threats such as:
Threats to inflict violence or force on you, someone else (such as family member or friend) or something else (such as a pet)
Threats to mentally or physically harass or degrade you
Threats to publicly humiliate or disgrace you (for example, by sharing nude photos with other people or posting them online)
Threats to unlawfully deprive you of your liberty (for example, by locking you in a car or not letting you leave the house)
Example 4
Intimidation
Intimidation could include:
Physical intimidation. This includes the size or physical strength of the person or whether they have something that could be used as a weapon.
Verbal intimidation. This could include threats of consequences if you fight back, try to run or shout.
Intimidation by status or position. This could be by, for example, a school or TAFE teacher; a university lecturer or tutor; a sport, music or drama coach; a police officer, bouncer or security guard; an employer or manager; a religious leader; or a medical provider.
Intimidation based on physical environment. This could include the remoteness of a location, taking you to an unfamiliar place or preventing you from leaving their house or car.
Example 5
Fear of Bodily Harm
Your consent will not be free and voluntary if you fear the other person could cause you physical harm.
This could occur in a relationship where the perpetrator has used coercive behaviour or domestic violence previously, even if it only occurred on one other occasion. If the use of force and threats by the other person leads you to believe you will be physically harmed if you say no, then your consent will not be free and voluntary. This applies even if you were not directly threatened or physically attacked in that specific instance.
Example 6
Even if there is no history of violence or threats, if you fear the other person could cause you physical harm if you say ‘no’, then your consent is not free and voluntary. It doesn't matter if they have not threatened or hurt you before.
Example 7
Authority
Your consent is not free and voluntary if somebody uses their position of power or authority to get you to have sex with them. This could include:
your boss
a teacher, university lecturer or tutor
a foster parent
a religious leader
health professionals such as your doctor or a counsellor
sports, music, art or drama coaches
police officers, security guards or bouncers
Example 8
Example 9
Fraud and Mistaken Identity
Consent is not freely and voluntarily given where:
The other person deceives you about the nature or purpose of the act (for example, it is for medical purposes); or
the other person pretends to be your usual sexual partner (for example, your boyfriend or girlfriend).
Example 10
Example 11
Example 12
Condom Use
If you consent to sex on the basis that the other person will use a condom and they either refuse or else remove it during the sexual act without you knowing, then your consent is not free and voluntary.
Removing a condom during sex is sometimes called ‘stealthing’. It can also happen when someone sabotages or tampers with the condom.
Example 13
Image-Based Sexual Abuse
It is illegal to share or threaten to share a nude, sexual or intimate photo or video of anyone without their consent, even if they agreed to share it with you. This includes images or videos that:
breasts, genitals or anal area (even if in underwear)
show a private activity (for example, showering, getting undressed, using the bathroom or performing a sex act)
Image-based sexual abuse is a serious crime and can lead to imprisonment.
Image based sexual abuse could include:
Posting intimate images or videos of someone on social media or sending them through messaging services (for example, WhatsApp) without their consent
Threating to post or share intimate images or videos of someone without their consent (for example, threatening to share nude photos to humiliate someone or for sexual favours)
Positing intimate images or videos of someone on a porn site without their consent
Digitally altering images or videos (for example, photoshopping a photo of someone onto the body of a porn actor)
It is illegal to create, possess or share any nude photo or video of anyone under the age of 18. It doesn't matter if the image was initially created with their consent or they have agreed to share it.
Example 14
You may have heard the term ‘revenge porn’ used for this type of image-based abuse. However, the term ‘revenge porn’ is inaccurate. ‘Revenge’ implies that someone deserves retribution for something they have done, while ‘porn’ implies it was consensual or done for public entertainment.
It is not your fault if someone shares or posts photos or videos of you without your consent. You are never to blame. This is the case whether or not you took or consented to having the image or video taken in the first place. The only people responsible are those that post, share or view them.
Posting or sharing nude photos or videos without consent is not ‘revenge porn’. It is image-based sexual abuse and it is a crime.
Example 15
Consent Myths
Stereotypical and false beliefs about women’s behaviour (sometimes called ‘rape myths’) seek to place the blame for rape or sexual assault on the victim and excuse or justify the perpetrator’s actions.
However, consent cannot be inferred from unrelated social behaviour. Nor can it be inferred from your actual or perceived behaviour in the hours or days or at any time leading up to the rape or sexual assault.
Going home with someone is not consent
Getting drunk or high is not consent
Flirting is not consent
Dancing with someone is not consent
Kissing or touching is not consent
Wearing certain clothing is not consent
Your appearance is not consent
Being naked is not consent
Posting photos on social media is not consent
Having had multiple sexual partners is not consent
Playing ‘hard to get’ is not consent
Being taken on a date is not consent
Liking sex is not consent
Having had sex with that person before is not consent
Sending nude images is not consent
Working as a stripper or sex worker is not consent
Consent and Social Behaviour
Consent can only be given at the time of the sexual activity. It cannot be implied from prior acts or conduct.
Example 16
Example 17
Myths About Consent
Myth
Only certain types of women are raped or sexually assaulted.
Truth
Sexual violence is common in all communities. It can happen regardless of your income, culture, religion, age or sexual orientation. Figures from the Australian Bureau of Statistics in 2016 show that 1 in 5 women have experienced sexual violence since the age of 15.
There is no link between a person’s prior behaviour and their risk of being raped or sexually assaulted. Most rapes are perpetrated in residential locations, by someone known to the victim, with no connection to what they were wearing at the time, their reputation or what they were doing.
Myths that certain types of behaviour (like drinking, flirting or going out at night) mean someone is inviting sexual violence seek to transfer blame from the perpetrator onto the victim.
Myth
If you are in a relationship or you have had sex with that person before, then consent can be implied.
Truth
Having an existing or prior relationship is not consent. Whether a person has had sex with someone before, even if it was the same day, is irrelevant to whether they consent to another, separate sexual act.
Myth
Women who are raped or sexually assaulted were asking for it.
Truth
Victims of sexual violence are never responsible for their own assault. No one is entitled to another person’s body and nothing a person wore, did or said prior to an assault is permission for another person to touch them sexually without their free and voluntary consent.
Consent and Male Victims
Although most rape and sexual assault victims are women and most perpetrators are men, men can also be victims of rape and sexual assault.
Myth
Only gay men rape or sexually assault other men.
Truth
Rape and sexual assault have more to do with power, control, violence and coercion than sexual orientation. Heterosexual men rape and sexually assault other men.
Myth
Men cannot be raped or sexually assaulted by women.
Truth
While most rapes and sexual assaults are perpetrated by men, women can rape and sexually assault men or women. Rape or sexual assault is not always perpetrated through physical force, but can occur through coercion, emotional manipulation, threats or intimidation.
Myth
Male victims experience less harm or are not as traumatised after rape or sexual assault as women.
Truth
All victims suffer significant psychological harm following rape or sexual assault. This can include depression, anxiety, suicidal intention, feelings of worthlessness, loss of self-esteem, post-traumatic stress disorder and difficulties in relationships.
Men can also suffer from denial, shame or self-blame that they were unable to fight back or stop the non-consensual sexual activity. They may suffer from sexual dysfunction or confusion over their sexual orientation. They may not disclose the rape or sexual assault for fear of disbelief or judgement.
It is important to believe and support all victims of rape and sexual assault.
Myth
Men want to have sex as much as possible and all sex is welcome.
Truth
Men have the right to choose when and with whom they have sex. Men are not sexually attracted to everyone and they do not always want to have sex. There are many reasons a man may not want to have sex. Having sex with a man without his consent is a violation of his right to control his body.
Myth
If a man has an erection or ejaculates he must have consented.
Truth
Just because a person with male genitalia gets physically turned on does not mean they consented. Physical signs of arousal such as erections and orgasms can occur during rape and sexual assault. They are normal bodily responses and cannot be controlled. It does not mean the victim consented or enjoyed the sexual activity.
Myth
A real man would have fought back or resisted.
Truth
Rape or sexual assault is never your fault. Anyone, regardless of gender, size, appearance or physical strength, can be raped or sexually assaulted. Rape and sexual assault is often perpetrated with minimal additional violence; rather, it can involve an abuse of power or psychological manipulation by someone known to you.
There are many reasons why men do not physically resist rape or sexual assault regardless if the perpetrator is male, female or non-binary. This could include:
they are victims of coercive control
they fear physical violence or a threat of violence escalating if they resist
they freeze or become immobile in response to trauma
they are heavily intoxicated
the perpetrator is exerting authority over them
Myth
Rape only involves vaginal penetration.
Truth
Rape includes the non-consensual penetration of the mouth or anus with a penis or the anus with any body part or object.
Myth
A man raped or sexually assaulted by another man must be gay.
Truth
Being raped or sexually assaulted has nothing to do with the victim or perpetrator’s sexual orientation. In many cases, sexual violence is about exerting power and control.
If you experience an erection or ejaculation during rape or sexual assault, it does not mean that your sexual orientation has changed or that you wanted or enjoyed it.
Consent and LGBTQ Communities
Sexual violence affects people of every gender identity and sexual orientation. However, people who identify as lesbian, gay, bisexual, transgender, intersex, queer or questioning, asexual and gender diverse (LGBTIQA+) experience rape and sexual assault at higher rates than the community at large.
Every person regardless of their gender identity or sexual orientation has the right to consent freely and voluntarily to any sexual experience. Consent is not free or voluntary when it is obtained through intimidation or threats.
Specific ways this may affect LGBTIQA+ people may include:
Using homophobia, biphobia or transphobia to exercise power and control over another person (for example, telling them that no one will believe them or using shame to silence them)
Threatening to out the other person or tell their workplace, family or friends about their sexual orientation or trans identity
Threatening social isolation to control the other person, particularly where the other person is new to the LGBTIQA+community or the community is small
Pressuring another person to demonstrate their sexual identity (for example, to have sex with someone of a particular gender to prove that they are gay or straight)
Myth
Rape and sexual assault can only be perpetrated by an active, aggressive male against a passive woman.
Truth
Most rapes and sexual assaults are perpetrated by heterosexual, cisgendered men against women. However, men, transgender and gender diverse people are victims of sexual violence. Women can also be perpetrators of sexual violence against both women and men.
Myth
Rape that involves vaginal penetration with a penis is more serious than other forms of sexual violence.
Truth
Rape includes acts other than penile penetration of the vagina and any form of sexual activity without free and voluntary consent is violating and traumatic for the victim.
Myth
LGBTIQA+ people are asking for it or have risky lifestyles.
Truth
This is a false and destructive stereotype about LGBTIQA+ communities. You are never to blame for sexual violence against you. The only person to blame for sexual violence is the person who perpetrated it.
Myth
Since sexual violence is mostly perpetrated by heterosexual, cisgendered men against cisgendered women, the latter are the real victims.
Truth
There is no hierarchy of victimhood. Anyone person raped or sexually assaulted is a victim and should be treated as such. Privileging heteronormative ideas of what constitutes victimhood not only conceals the seriousness of sexual violence against LGBTIQA+ individuals, it also continues to perpetrate negative stereotypes regarding sexuality and gender which are damaging to all victims of sexual violence.
These myths can prevent LGBTIQA+ people from recognising or reporting sexual violence or seeking help from support services. It is important to remember that sexual violence can happen to anyone regardless of gender or sexual orientation. All victims must be believed and supported.
Example 18
Example 19
Consent and Intoxication
You can consent to sexual activity when you are intoxicated as long as consent is given clearly, voluntarily and unambiguously. However, you are unable to consent to any sexual activity if:
You are drunk or high to the extent that you are passed out, unconscious or asleep; or
The normal, everyday functioning of your brain is impacted by drugs or alcohol to the extent that you are unable to properly make decisions, including whether you want to have sex or not.
Signs of an inability to consent due to intoxication include:
An inability to speak coherently
A confusion of basic facts
An inability to make informed, rational judgements or understand consequences (such as running into a busy street)
Unsteadiness or inability to walk unassisted
Falling asleep or passing out
If you have any doubts about whether the other person is too drunk to consent, then don’t have sex.
Remember that consent requires active communication. If a person is too drunk to communicate clearly, then wait until they are sober.
Example 20
Alcohol and drugs can affect your ability to communicate and interpret other people’s communication. If someone is using alcohol and/or drugs and you want to have sex with them it is your responsibility to check whether they are okay with what is happening before you start and continue checking in with them consistently throughout.
Even if you are in a relationship, when either or both of you are drunk or high it is still important to check in to ensure both parties are consenting.
Checking in with someone could include asking:
Is this okay? How are you feeling?
Do you want to keep going or take a break?
Are you enjoying this?
Alcohol and drugs lower your inhibitions. They can reduce self-awareness and increase risk-taking. If someone says ‘no’ to sex when they are sober, then you need to be extra cautious if they agree to have sex while drunk or high. If you are unsure, ask again and make sure they answer ‘yes’ clearly and decisively. If they are unable to do this, then stop.
Example 21
Where the person who initiates sex or tries to introduce a new sexual act is also intoxicated, they are likely to have a decreased ability to recognise whether the other person is consenting or not. However, this does not negate the other person’s lack of consent.
Being drunk is not an excuse for rape or sexual assault. It will not reduce your criminal responsibility.
Example 22
Consent and Non-Resistance
Myth
Real rape or sexual assault involves a victim physically resisting their attacker.
Truth
A large proportion of rape and sexual assault victims do not resist. There are many reasons why you may not physically resist or express a lack of consent. These could include:
You are afraid that struggle or resistance will lead to increased violence, aggression, injury or death to yourself or someone else.
You are paralysed by fear or trauma and are unable to shout, move or flee.
You try to pacify and befriend the perpetrator in the hopes of stopping or minimising the assault.
You decide that it is best to cooperate and endure it rather than risk escalating the attack and violence.
You are under the influence of drugs or alcohol to the extent you are incapacitated or unable to resist.
However, you never need to justify non-resistance. Non-resistance does not make you to blame nor does it constitute consent.
Myth
There must be evidence that the victim resisted to prove there was rape or sexual assault.
Truth
An absence of physical injury or violence does not mean consent. Rapes and sexual assaults often leave no physical signs of force or violence. Most rapes and sexual assaults are perpetrated without the use of a weapon and without overt physical injuries.
Myth
If there are signs she enjoyed it, then she must have wanted it.
Truth
Physical signs of arousal by people with female genitalia, such as wetness or an orgasm, can occur during rape and cannot be controlled. They do not indicate the victim consented or enjoyed it.
Example 23
Example 24
Example 25
If confusion or ambiguity arises during a sexual interaction, it is essential that each participant stop and clarify the other's willingness to continue. Look for wholehearted engagement, rather assuming passivity and silence are consent.
Enthusiastic consent – saying ‘yes’ as well as positive and engaged body language and actions – is crucial.
Withdrawal of Consent
Consent must be continuing. You have the right to withdraw your consent at any time before the act takes place or at any time after the act has begun.
You can withdraw your consent for any reason. Sexual activity that continues after consent has been withdrawn is rape or sexual assault.
It is the responsibility of all parties to sexual activity to ensure consent exists throughout the whole encounter. Consent cannot be demonstrated by past behaviour. Just because someone agrees to have sex with you at first does not mean their consent continues.
Example 26
Prior consent does not imply current or future consent. Even in the context of an ongoing relationship, consent must be sought and freely given for each instance of sexual contact.
