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What is sex for the purposes of the law?

“Having sex” can mean different things to different people. Under the laws of New South Wales, ‘having sex’ is described as ‘sexual intercourse’ which means penetration of the vagina or anus of any person by any object or part of your body, or having oral sex. .

How old do I have to be to have sex?

In New South Wales, you and your partner have to be 16 years old before you can have sex. The same age requirement applies if you are homosexual.

If you have sex with someone between 14 and 16 years old, even if it is consensual, you can go to prison for up to 10 years, and the penalties are even higher if the person is younger.

You must both consent to having sex:

If you are over 16 years old and want to have sex with someone, it is very important that you know that your partner ‘consents’, or agrees, to having sex with you.

Things that affect consent:

Under the law, some things might mean that a person does not consent, regardless of what the person might say. You should know what is not consent. For example, a person cannot consent if he or she is:

• asleep, or unconscious;
• significantly drunk or affected by drugs at the time, or
• threatened or frightened into agreeing.

Family Planning NSW has a useful factsheet on what it means to consent to having sex and other relevant information for young people thinking about starting a sexual relationship. Click here for more information.

Sexual Assault

It is a serious criminal offence to have sex with someone who does not consent. If a person has sex with you, and either;

• knows that you did not consent, or
• was reckless as to whether you consented (in other words, if they knew there was a
possibility that you did not consent but acted anyway), or
• had no reasonable grounds for thinking that you had consented, this is called ‘sexual assault’.
A person who is convicted of sexual assault can go to prison for 14 years. .

Some circumstances make sexual assault even more serious in the eyes of the law. For example, if a person commits a sexual assault on you and;

• deliberately hurts you or someone nearby; or
• threatens to hurt you or someone with a weapon; or
• is in the company of someone else or a group of people; or
• you are under 16; or
• you have a serious physical or a cognitive impairment which can be any disability, disorder,
illness or injury that requires supervision in connection with daily life activities ; or
• is a person who has authority over you, like a teacher

then this is called “aggravated sexual assault” and if convicted, the person could go to prison for up to 20 years , or in some cases, even for life. .

Have you been sexually assaulted?

If you have been sexually assaulted, you have the right to report sexual assault to the police at any time. There is no time limit on when you can to report it.

If you decide to report what has happened to you, it is a good idea to take a friend or support person with you to the police station.

If you report it soon after it has happened, you can ask to speak to an officer who is the same sex as you if it makes you feel more comfortable. They will be experienced in dealing with victims of sexual assault and will understand the distress and fear you may be feeling. You may be asked to give the police the items of clothing you were wearing when you were attacked because they may contain traces of evidence that can identify the person who attacked you.

The police will also arrange for you to have a medical examination if you want to. The doctor will treat any injuries you have and also gather any evidence that may help the police with their investigation. The doctor will talk to you about the examination beforehand, so you understand what they’re doing and why they’re doing it.

Talking helps

If you have been sexually assaulted you may feel very upset or vulnerable and be going through lots of different feelings about what happened. It is important to talk to someone like a friend, or your family who can support you. It can also help to speak with specialized counsellors like the ones you see at school who understand what you have been through and what you are feeling.

The NSW Rape Crisis Centre has a 24 hotline to speak with a counselor:

NSW Rape Crisis Centre Hotline 1800 424 017

More information

The NSW Rape Crisis Centre has an information sheet for people who have been sexually assaulted.

ReachOut! also has a useful fact sheet on sexual assault.