35DSexual activity

35D Sexual activity

An activity may be sexual due to—

(a) the area of the body that is involved in the activity, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or

(b) the fact that the person engaging in the activity seeks or gets sexual arousal or sexual gratification from the activity; or

(c) any other aspect of the activity, including the circumstances in which it is engaged in.

A watches pornography in the presence of A's daughter (B) and her friend (C).

S. 36 substituted by No. 81/1991 s. 3, repealed by No. 74/2014 s. 7(2), new s. 36 inserted by No. 47/2016 s. 5, amended by No. 38/2022 s. 3(1), substituted by No. 38/2022 s. 5.

36 Consent

(1) Consent means free and voluntary agreement.

See also sections 37A and 37B which set out the objectives of Subdivisions (8A) to (8G) and the guiding principles that the courts are to have regard to in interpreting and applying those Subdivisions, including this section and section 36AA.

(2) A person does not consent to an act just because they do not resist the act verbally or physically.

(3) A person does not consent to an act just because they consented to—

(a) a different act with the same person; or

(b) the same act with the same person at a different time or place; or

(c) the same act with a different person; or

(d) a different act with a different person.

S. 36AA inserted by No. 38/2022 s. 5.

36AA Circumstances in which a person does not consent

(1) Circumstances in which a person does not consent to an act include, but are not limited to, the following—

(a) the person does not say or do anything to indicate consent to the act;

(b) the person submits to the act because of force, a fear of force, harm of any type or a fear of harm of any type, whether to that person or someone else or to an animal, regardless of—

Each of the following is a type of harm that can be done to a person as described in this paragraph—

(c) the person submits to the act because of coercion or intimidation—

(d) the person submits to the act because the person is unlawfully detained;

(e) the person submits to the act because the person is overborne by the abuse of a relationship of authority or trust;

(f) the person is asleep or unconscious;

(g) the person is so affected by alcohol or another drug as to be incapable of consenting to the act;