|
Consenting To Sex
Who you have sex with is a matter of personal choice, regardless of gender. Gay sex is not against the law.
If you want to have sex with someone, you both have to agree (consent) and the law places some restrictions on the age of sexual partners (see sidebar).
‘Consent’
Consent means ‘free agreement’. A failure to say no cannot be taken as consent.
It is not ‘free agreement’ if the person has sex because they are afraid, asleep, unconscious, or too drunk or drug affected to agree freely, or they don’t understand what is happening. Consent can also be withdrawn at any time. Having sex with someone without his or her consent is an offence (see Sexual Assault and Rape in the Violence section).
Age of consent
Generally in Western Australia the age that someone can legally consent to sex is 16.
The law about under-age sex is the same for all. It doesn’t matter what sexes and genders the people are. If you are:
- under 13 – no one is allowed to have sex with you (even if you say yes or ‘consent’). See Sexual Assault and Rape in the Violence section);
- between the ages of 13 and 16 – a person is not allowed to have sex with you. However, if you gave consent AND they are no more than 3 years older than you AND they believed you were 16 or older at the time, then they may have a defence to the crime;
- aged 16 or 17 – a person is not allowed to have sex with you if you are under their care, supervision or authority (even if you consent).
Having sex with a young person in contravention of these age restrictions is an offence and can carry a significant jail sentence (see Sexual Assault and Rape in the Violence section).
What does the law mean by Sex?
Generally, the law around sex is there to stop sexual violence or protect young or other vulnerable people from being taken advantage of. The law can define sex and sexual activity very broadly depending on the relevant law. Sometimes sex can specifically mean penetrative sex (i.e. a penis or other object going into a vagina, anus or other part of a body). Other times sexual activity may mean fondling, viewing pornography together or taking photos.
Having sex interstate
The age of consent for gay sex is different in the various States and Territories of Australia and is often based on 2 genders only - male and female. The following table summarises the various ages but most states have a higher age of consent in relation to people under your care, supervision or authority.
Sexual Harassment
‘Sexual harassment’ is unlawful in the workplace and some other areas (see the Discrimination section).
Sexual harassment in social situations or in public is not unlawful in Western Australia, unless it is so persistent and intimidating that it is seen as ‘stalking’ or sexual assault (see the Violence section).
Beats & Sex In Public Places
‘Indecent acts in a public place’ are an offence under the Criminal Code.
To determine what is either acceptable or indecent sexual behaviour in public the police and courts consider general community standards. What is indecent covers more extreme sexual behaviour than just expressions of sexuality or affection. It should be applied equally to all people and if the police charged you with an ‘indecent act in public’ for holding hands or kissing, they may be unlawfully discriminating against you, since this behaviour is generally accepted. You could probably complain or take action against the police on this basis (see the Discrimination section and Complaints About Police in the Dealing with Police section).
If you have sex in public, you may be charged with committing an indecent act. Men using beats can be charged with ‘indecent acts in a public place’. To prove the offence, the police have to show that what happened was both ‘indecent’ and in ‘public’.
‘Indecent’ means potentially indecent – an actual person does not need to have been offended by your actions. But to be indecent, the behaviour also has to be easily seen – if it ‘cannot be seen without the observer having to take abnormal or unusual action to observe it’, it may not be indecent.
The definition of a public place is very wide and would include public toilets. Closing the cubicle door doesn’t turn a public place into a private place.
Discriminatory Law Gone!!
There used to be a specific offence for “gross indecency between males in public”. Men who had sex at beats were often charged with this. This offence no longer exists as it was considered discriminatory, but there is still the general offence of committing an indecent act in public (or, in some cases, in private). This means that if you have sex at beats, you could still be charged with a criminal offence.
|
