WHAT IS CONSENT?
To have sex, everyone involved needs to give consent.
Consent is a voluntary agreement; every person has the right to decide if they want to participate in a sexual activity - this goes for when, how, what and who. There's heaps of analogies out there explaining consent – from tea to $5 dollar bills – however, new laws in NSW have made consent very clear.
NSW has recently adopted the affirmative consent approach which requires “ongoing and mutual communication”. This means a person now has to say or do something to find out whether the other person consents to the sexual activity. Failure to do so is a crime.
Note: The legal definition of consent may differ country to country, and/or state to state. This information deals with NSW laws only.
Under current NSW law, consent only exists when a person freely and voluntarily agrees to engage in sexual intercourse.
What does it mean?
- Consent must be positive (it must be an enthusiastic 'yes' - not a failure to say no). It can be given verbally or expressed through actions.
- Note: while someone can give positive consent via actions, assuming that someone is consenting to sex because you've been flirting or kissing, or because of the clothes they're wearing, does NOT equal positive consent.
- Consent cannot ever be presumed. The fact that a person does not physically resist sexual activity is not consent. The law says there is no consent if ‘the person does not say or do anything to communicate consent’ (this recognises the freeze response which can be common reaction). And the person initiating sexual activity must say or do something to find out whether the other person consents to the sexual activity.
- Consent must be continuing (if someone consents initially and then says no later, consent is withdrawn).
- Note: consenting to one activity (e.g. kissing) does not automatically mean consent is given for another (e.g. removing someone else's clothes or removing a condom i.e. ‘stealthing’.).
- In the same vein, just because consent was given for sex on one occasion doesn't mean consent has automatically been given for sex again in the future. Consent must be affirmed for every instance of sexual contact.
The law also specifies certain situations where there is no consent. It includes where a person:
- Does not say or do anything to communicate consent;
- Is so affected by alcohol or drugs that they are incapable of consenting;
- Is unable to understand what they are consenting to (i.e. there must be informed consent);
- Is intimidated, coerced or threatened;
- Is mistaken as to the other person's identity;
- Submits to the abuse of authority of a professional or any other trusted person;
- Is held against their will;
- Under the age of 16.
Sexual intercourse without consent constitutes a sexual offence. In deciding whether a person should have known or reasonably believed there was consent, the fact that the accused was intoxicated at the time is not relevant.
WHAT IS A SEXUAL OFFENCE?
There are three broad types of sexual offences in NSW:
- Sexual Act (previously called "act of indecency")
- Sexual Touching (previously called "indecent assault")
- Sexual Assault
Due to changes in the NSW Crimes Act, the crime of "act of indecency" is now “sexual act,” which has a much broader definition.
Sexual Act is defined as any act that a reasonable person would consider to be sexual (in light of the circumstances).
It is a crime to carry out a sexual act with, or towards, another person without their consent. For example, masturbating in front of another person.
It is aggravated if the act is not private, where the victim has an impairment and/or is under the perpetrator’s authority.
If the act involves touching or penetration, it may constitute an offence of sexual touching or sexual assault instead.
Indecent assault is now the crime of sexual touching (plus its aggravated form). Indecent assault still exists for acts committed before December 2018.
Sexual Touching means touching with any part of the body (or anything else) or touching through anything (including clothes) in circumstances where a reasonable person would consider the touching sexual. Those circumstances includes location of the touching, whether the touching was for sexual gratification, and anything else which may regard the touching as sexual.
It excludes touching for medical or hygienic purposes.
It is a crime for any person to intentionally touch another person, incite a person to touch them (or another person), or incite a third person to touch the victim – without consent, and knowing there was no consent.
This crime is aggravated if the person touched has an impairment or was under the perpetrator’s authority.
The crime of Indecent Assault still exists for acts committed prior to December 2018. Indecent assault involves the act of touching (or threatening to touch) a person's body in a sexual manner without their consent. It can include:
- Kissing another person, if the kiss is unwanted and not consented to
- Unwanted touching of another person's genitals
- Intentionally rubbing your genitals against another person without their consent
Sexual assault occurs where a person has sexual intercourse with another person without their consent.
Note that there doesn't need to be violence or a physical injury for an act to be sexual assault – if sex wasn't consented to, then it is sexual assault.
WHAT IS SEXUAL INTERCOURSE?
In NSW, the law defines 'sexual intercourse' as penetration of the vagina or anus of any person with any body part of another person, or any object. It also includes insertion of the penis into another person's mouth, and cunnilingus.
Aggravated Sexual Assault
Aggravated sexual assault is where a sexual assault has occurred 'in circumstances of aggravation'.
Circumstances of aggravation can include where the offender:
- Was a part of a group of people committing the offence
- Kidnapped the person to commit the offence
- Broke into a home to commit the offence
- Seriously injured or threatened to seriously injure the victim
Aggravated sexual assault has harsher penalties.
SEXUAL CRIMES CAN BE COMMITTED WITHOUT TOUCHING
Under NSW law, upskirting (taking a photo/video from underneath someone's skirt or dress) is a criminal offence. This offence also applies generally to a photo/video taken of someone's private parts without their consent.
Offenders can be fined up to $11000, or see a maximum penalty of 2 years' imprisonment (or both). Harsher penalties apply if the person filmed was under 16.
Voyeurism (or maybe you've heard the term "peeping") is the act of intentionally observing someone engaged in a private act without their consent (e.g. through a peephole). It is a crime in NSW, and offenders can be fined up to $11000, or see a maximum penalty of 2 years' imprisonment (or both).
A person 'engaged in a private act' can include a person undressing/being undressed, using the toilet, showering or bathing, a sexual act, or any act where you'd normally expect to be afforded privacy.
New laws in NSW have been introduced to specifically make revenge porn, or 'image-based abuse', a criminal offence. If you record or share an intimate image of someone without their consent, you can be fined up to $11000 and/or a maximum penalty of 3 years' imprisonment (even if you had consent to take the photos at the time). Additionally, if you do not take the images down you could face an additional fine of $5500 or another 2 years' imprisonment (or both).
It is ALSO an offence to threaten to record or distribute intimate images (even if you don't actually share the images).
An 'intimate image' can be an image of a person's private parts (whether bare or covered by underwear), or of a person 'engaged in a private act' (i.e. undressing/being undressed, using the toilet, showering or bathing, a sexual act, or any act where you'd normally expect to be afforded privacy).
NOTE: as of 25 August 2017, these laws are currently in effect in NSW.
Filming a Person in a Private Act
Taking a photo or video of someone who is engaged in a private act is a criminal offence. A private act can include undressing/being undressed, using the toilet, showering or bathing, a sexual act, or any act where you'd normally expect to be afforded privacy.
Offenders can be fined up to $11000 and/or up to 2 years’ imprisonment. Harsher penalties apply if the person filmed was under 16.
Using a Carriage Service to Menace, Harass or Cause Offence
Sexually harassing someone via phone, email, IM, online chatrooms and internet services like Facebook and Skype is a federal crime (e.g. sending unsolicited nudes to someone on Tinder).
WHAT IS SEXUAL HARASSMENT?
- Unwanted sexual advances
- Unwelcome requests for sexual favours
- Any other unwelcome conduct of a sexual nature
in circumstances where a reasonable person would be expected to be offended, humiliated or intimidated by the behaviour.
In particular, it is unlawful for a person to sexually harass another person in the course of employment or education (as well as the in the provision of goods/services, and accommodation).
EXAMPLES OF SEXUAL HARASSMENT
The following behaviour can constitute sexual harassment:
- Staring or leering in a sexual manner
- Unwelcome wolf-whistling
- Comments about your physical appearance
- Questions about your sex life
- Repeated sexual invitations when you have refused similar invitations before
- Sexually explicit messages, texts or emails that are unsolicited and/or unwanted
Sexual harassment doesn't necessarily have to be repeated behaviour: a single incident may constitute harassment.
Around 1 in 5 workers over the age of 15 experience sexual harassment. Sexual harassment 'at work' can occur:
- In the workplace
- At work-related events
- Between people in the same workplace
- Between colleagues outside of work
Under law, your employer has a responsibility to take 'all reasonable steps' to make sure your workplace is free from harassment and discrimination. the
Reasonable steps can include having a clear policy which emphasises that harassment is not acceptable and sets out ways to address harassment when it occurs, and implementing measures to ensure that the policy is followed.
Sexual harassment 'at uni' can occur:
- On university campus
- At university events
- Between students
- Between students and staff (e.g. tutors/teachers/supervisors)
UNSW policy states that all UNSW students and staff must act lawfully, appropriately and treat other members of the UNSW community with respect - that is, without harassment or discrimination.
If a student/staff member sexually harasses another person, they may be in violation of the UNSW Code of Conduct and/or the Student Code Policy - and the University is obliged to respond accordingly.
UNSW has developed a specific Sexual Misconduct policy which will address how the university responds to complaints of sexual harassment. You can access it here.
...is it still an offense if it happens online? YES.
Harassment is still harassment, regardless of whether it happens face-to-face, or online.
Most social media sites have acceptable conduct policies – harassment can result in consequences like being banned from communicating with certain people, or your account being deactivated.
But more seriously, using a carriage service (which includes phones, email, IM, online chatrooms and internet services like Facebook and Skype) to harass someone is an offence under current Australian law:
- Using a carriage service to menace, harass or cause offence carries a maximum penalty of 3 years imprisonment. Example: sending unsolicited nudes to someone on Tinder.
- Using a carriage service to threaten to seriously harm someone carries a maximum penalty of 7 years imprisonment. The threat can be made to the person receiving the message, or about a third person. The person you're making the threat about does NOT need to actually fear that you're going to carry out the threat - it's enough that you intended for them to feel threatened. Example: while talking to your friend on Skype, you threaten to break your ex's arm.
- Using a carriage service to threaten to kill someone carries a maximum penalty of 10 years imprisonment. The threat can be made to the person receiving the message or about a third person, and the person you're making the threat about does NOT need to actually fear that you're going to carry out the threat - it's enough that you intended for them to feel threatened. Example: sending someone a text where you threaten to kill them.
- Revenge Porn (also known as 'image-based abuse') is also a criminal offence. Recording or sharing an intimate image of someone without their consent, and/or threatening to record or distribute intimate images, carry serious fines and potential imprisonment for up to 3 years (or both). You can find out more about this offence here. Example: posting naked pictures of your ex on Facebook without their consent.
And while the law can sometimes be slow in keeping up with new social media trends, there have been recent changes (like these new laws which criminalise revenge porn, and this example of how employers are paying more attention to what their employees say on the internet).
So: just because it happened online doesn't mean it won't affect you in the real world.
REMEMBER: THE DECISION ABOUT WHAT TO DO IS ALWAYS WITH THE PERSON WHO EXPERIENCED THE HARASSMENT
IF YOU'VE EXPERIENCED SEXUAL HARASSMENT, IT IS YOUR CHOICE TO REPORT (OR NOT REPORT) AN INCIDENT
HOW CAN I REPORT SEXUAL HARASSMENT?
If you've experienced sexual harassment, there are various steps you can take to address it. You can:
- Talk to someone to get support and advice.
- Tell the offender (verbally or in writing) that you find their behaviour unacceptable, and want it to stop.
- Informally discuss the behaviour with your university/work supervisor.
- Keep a written record of everything that happened, and the names of people involved or who saw what happened.
- Make a formal complaint to your employer or to the university.
- Make a formal complaint to the Australian Human Rights Commission, or the NSW Anti-Discrimination Board.
MAKING A FORMAL COMPLAINT
Sexual harassment can be reported by making a complaint to the Australian Human Rights Commission(AHRC), or to the NSW Anti-Discrimination Board. It's free to make a complaint at either organisation, and you can make a complaint within 12 months after the harassment occurred.
However, there are different laws and procedures followed by the different organisations, so getting advice about your situation before you make a complaint is recommended. You can find out more about the complaint process of the Anti-Discrimination Board here, and this fact sheet provides more info on the law & how sexual harassment complaints are handled by the AHRC.
If either organisation cannot resolve your complaint, you may have the option to go to court or a tribunal to resolve the issue.
YOU CAN ALSO MAKE A FORMAL COMPLAINT TO YOUR EMPLOYER OR TO UNSW DIRECTLY.
If the incident(s) occurred at work:
Your employer should have a formal policy outlining how to report sexual harassment. Employers must take all reasonable steps to address complaints of harassment. They cannot ignore your complaint, fire you or otherwise punish you for making a complaint.
If the incident(s) occurred at uni:
You can make a complaint about a UNSW student or staff member to the Student Integrity Unit. The complaint process is guided by the UNSW Student Complaint Procedure - we've got a quick overview of the general process here. Additionally (or alternatively) you can report sexual harassment through UNSW's online portal - reports can be anonymous, and can be informal or lead to a formal complaint if you choose.
You cannot lose your student visa or right to study at UNSW for reporting an incident.
Note: UNSW has a specific Sexual Misconduct Prevention & Response Policy which addresses how the university will respond to complaints of sexual assault and harassment.
More info on UNSW services that you can access can also be found here.
Arc Legal & Advocacy can help you if you wish to make a complaint about harassment.
Do I have to report an incident?
No. It is always your choice whether to report an incident or not. There is no obligation (legal or otherwise) for you to report an incident.
Can I report an incident anonymously?
Yes. If you don’t want to make a formal complaint, you can anonymously report the incident to the police through this form. You can also make anonymous reports to UNSW through their online portal.
Reporting can be a valuable tool. Even without your personal details, statistics about where assaults commonly happen, when, how, and how many, and who can help both UNSW and the government develop policy, allocate resources, increase funding and improve community education.
When do I have to report an incident?
- If you want to make a report to the police: reports (formal complaints or otherwise) can be made at any time.
- If you want to make a report to UNSW: reports can be made through the online portal at any time. Formal complaints, as per current UNSW procedure, must be made within 12 months of the date the incident occurred.
If I report an incident, how will it affect me at work/uni?
Harming or disadvantaging someone because they raise an issue or make a complaint is victimisation. It's taken very seriously, both by Australian law and UNSW.
- At work: under Australian law, it is illegal for your employer to ignore your complaint, fire you or otherwise punish you for making a complaint. That said, there are various concerns people may have when it comes to reporting sexual harassment or assault at work - for example, if the incident involves someone with more seniority and you're worried reporting might affect your job.
- At uni: UNSW is obliged to respond to any complaints about students and staff promptly, with fairness, sensitivity and confidentiality. You cannot suffer detriment or disadvantage as a direct result of making a complaint to the uni. If you are victimised because you made a complaint, tell the Student Integrity Unit immediately. Victimisation can be grounds for staff or student disciplinary action.
UNSW may also provide you with alternative study options, such as completing courses online or ensuring you study in classes separate to the offender. This is usually done on a case-by-case basis.
Note: you cannot lose your student visa or right to study at UNSW for reporting an incident.
Arc Legal & Advocacy can help you understand the different reporting options (and their pros & cons) available to you.
I don't want to report the incident. What else can I do?
There are a variety of other support services out there which you can get in touch with, including: medical support, counselling services, and legal advice. These services can help you take your next step forward.
My friend was assaulted, but doesn't want to report the incident. I think they should. What can I do?
The decision about what to do is always with the person who experienced the assault. Even if you think reporting the incident is important, it may not always be the best decision for your friend. Your friend has already had their sense of personal control taken away - pressuring them to make a certain decision, or reporting the incident behind their back, can do them more harm than good.
Additionally, your friend might have concerns about any negative consequences they may experience if they report an incident – especially if they are living away from home, a member of a “vulnerable group” (like the LGBT+ community or someone from a culturally and linguistically diverse background), and/or worried that they may lose their job (often a concern of women who have experienced assault or harassment in the workforce).
Instead: you can best help your friend by listening to and supporting them. Helping them learn about the different options they can explore – such as medical support, legal advice, or counselling – can also give your friend some sense of control back.
Trying to take your next step forward after sexual assault & harassment can be overwhelming - but you don't have to do it alone. Medical support, counselling services and legal advice are some of the types of support you can get in touch with, and all are available on campus.
If you have experienced sexual assault, it is recommended that you get medical care.
Doctors can test and treat for any sexually transmitted infections, assist with any other injuries that may have occurred, and carry out a forensic examination (if the assault occurred recently and you want to report the incident to the police).
Doctors are obliged to keep your visit & any private information you tell them confidential.
UNSW Health Services is located on the Ground Floor, East Quadrangle Building, Kensington Campus.
For after hours care or emergencies, go to your local hospital or call an ambulance.
The closest hospital to Kensington campus is Prince of Wales Hospital/Sydney Children's Hospital located in Barker St, Randwick.
It's okay to not be okay - and it's okay to talk about it. There is a range of free and confidential counselling services that you can reach out to when you're in need. They include:
- UNSW Psychology & Wellness and Mental Health Connect (9am to 5pm, Monday to Friday): (02) 9385 5418
Calls re-directed to the UNSW After Hours Mental Health Support Line between 5pm and 9am Monday to Friday and 24 hours on weekends and Public Holidays
- Confidential one-to-one texting with a counsellor is also available: send an SMS to 0485 826 595
Available after hours between 5pm and 9am Monday to Friday and 24 hours on weekends and Public Holidays
- NSW Rape Crisis Centre: (02) 9819 6565 (24 hours)
- 1800RESPECT: 1800 737 732
Note: these services are also available for friends & family of someone who has experienced a sexual crime.
Here are other helpful links and contacts that can also help support you.
Legal support can help you if you want to understand more about sexual assault and sexual offences; how the law and/or UNSW responds to sexual offences, and give you advice about the different next steps available to you.
A lawyer can also provide you with advice about the pros & cons of different reporting options, guide you through the steps you'll take if you decide to report the incident, and can act as a support person during any police and/or UNSW investigations into the incident.
If you are a UNSW student, Arc Legal & Advocacy are here to help. You can contact Arc Legal via email, or make an appointment through Arc Reception.
Campus Security Safety Escorts
If you ever feel unsafe on campus, you can request a security escort from campus to your parked car parks, bus stop, taxi rank and limited locations surrounding campus. This is a free service provided by campus security 24 hours a day.
You can request a safety escort by calling 9385 6000 or 1800 626 003 or from any Help Point located on campus.
There's no how-to guide on how to respond to, or help someone respond to, sexual assault - but believing them, never blaming them, and being a source of support and compassion can make a world of difference.
How Can I Support Someone Who has Been Assaulted?
This info sheet from Rape & Domestic Services Australia includes ways to respond with compassion when someone tells you they have been sexually assaulted. You can also find advice and guidance here, here and here.
Some first steps include:
1. Ensure safety
If the person is in immediate danger or needs immediate medical attention, call 000.
If you are on UNSW campus, call UNSW Emergency Services (9385 6666), who will direct emergency vehicles to the right place.
If they do not need medical attention, ensure they have a safe place to stay.
If someone tells you they have been sexually assaulted, they are trusting you with something that is most likely very personal and overwhelming to them. It is important to listen to their story and let them express how they feel.
Don't worry if parts of the story don't add up or make sense to you immediately; you’re not an investigator. Instead of questioning them, it is more important to be a source of support and compassion and respond without judgment.
Some things you can say include:
- I am sorry for what has happened.
- What happened is a crime.
- I will do what I can to help.
3. Consider support services
You can also help support a survivor of sexual assault by helping them learn about the different support services they can get in touch with. These include medical support, counselling, and/or legal advice.
You can find a list of these services here.
Remember to respect their decision if they decide they do not want to contact all or any of these services. It’s important that they have control over what happens next.
It's also important to look after yourself: supporting someone who is experiencing significant pain and distress can impact you as well. Services you can contact to learn how to best support others & managing trauma you may experience include:
Here are other helpful links and contacts that can help support you.
Safe Spaces & First Responders
All Arc@UNSW spaces on campus are safe spaces. This includes all Arc venues (The Whitehouse and the Roundhouse), SRC & PGC spaces and all Arc offices. Arc does not condone unwanted sexual attention, advances, behaviour or assault. Arc@UNSW also has trained First Responders among their staff. See a list of First Responders here.
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