What the law says
It is a crime to have sexual intercourse with a person under the age of 17.
But you might have a defence if you are a similar age and both of you consent.
Am I old enough to have sex?
There are different laws in each state about how old you have to be before you can have sex. You could be charged if you have sex with someone who is outside the legal age of consent.
- If you're under 12, a person can’t have sex with you, touch you sexually or perform a sexual act in front of you, even if you consent (agree). The law says you're too young to consent to sex.
- If you're between 12 and 15 years old, a person can’t have sex with you, touch you sexually or perform a sexual act in front of you if they are more than three years older than you, even if you consent (agree).
- If you're 15 years or older, a person can’t have sex with you, touch you sexually or perform a sexual act in front of you, if they are more than five years older than you, even if you consent (agree).
- If you're 17 years or older you can consent (agree) to have sex with anyone else 17 years or older.
How can I tell whether someone consents?
To consent to sex, a person needs to be old enough (within the legal age of consent) and freely agree to the sexual activity.
You cannot freely consent if you are drunk, drugged, unconscious or asleep. It is also not consent if you are forced, tricked or threatened into having sex. If you have sex with someone who is unable to freely consent, this is sexual assault, which is a serious crime.
Anyone can withdraw their consent at any time - it doesn't matter if you've already started to have sex. If one person isn't into the sexual activity, then you have to stop.
Some people might give non-verbal signs that they want to stop instead of saying 'no'. Non-verbal signs can include things like turning away, pushing your hand away or not responding to your touch. Touching someone sexually if they don't want to is a crime - whether they've actually said 'no' or not. The best way to be sure that the other person consents to any kind of sexual touching is to ask them what they want to do and check to see if they want to keep going.
Get legal advice
Any charge of a sexual nature can have serious consequences for you. You should always get immediate legal advice about your situation. You can call 1300 366 611 and get free confidential legal advice, between 9am and 5pm Monday to Friday.