Consent for sexual activity

Consent is required when two or more people agree to take part in sexual activity. Without consent from all people involved, sexual activity is illegal. In Aotearoa New Zealand, you must be over 16 years of age to consent to sexual activity. The law is designed to protect young people from being taken advantage of.

Consent is an agreement, not just the absence of saying ‘no’. Consent is often established with talking and body language. Consent cannot be given if you are asleep, unconscious, too drunk or high on drugs.

Consent is a continuous process – just because you said ‘yes’ initially doesn’t mean you can’t change your mind. And just because you have had sex with this person in the past, it doesn’t mean you have to consent to sex again or that they should assume you consent to do so again. 

Consent must be given freely each time (and for each type of sexual activity) without pressure or coercion from another person.

Video: Tea and consent

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(Blue Seat Studios, US, 2015)

Video: What is sexual consent?

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(Public Affairs, NZ, 2017)

Video: Quick facts – sexual consent

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(Public Affairs, NZ, 2017)

Just because someone allows sexual activity does not mean that consent has been given. Consent cannot be given by someone who is:

• under 16 years of age (the legal age of consent in Aotearoa New Zealand)
• being forced or threatened (physically, emotionally or in any other way)
• unable to understand what they are consenting to, eg, they are too drunk or high, asleep/unconscious or are affected by an intellectual, mental or physical condition.

This does not cover every situation where someone can’t consent, but it does cover some of what is in the Crimes Act 1961 Section 128A(external link)(external link).  

Consent needs to be a part of every sexual experience. Consent is given (or not given) through both words and body language. Someone saying ‘maybe’ or not saying anything is not consent. 

You can change your mind at any time. Consent can be given and then at a later point it can be taken away. Consent is not a contract – it is a free and evolving agreement.

Sex without consent is sexual assault and is never okay. If you are not sure, stop and check with the other person. You can ask if they are okay, and offer to stop or to do something differently.

There are 3 key steps in getting consent: 

1. Ask: Be direct and straight up so there is less likelihood of confusion (which can be awkward and misleading). Try “What do you want to do?”, “Would you like to do …?”, “Are you sure you want to do …?”, “Is this ok?”
2. Listen: Consent is when both people say and show an enthusiastic ‘yes!’ to an activity. Some people find it hard to say ‘no’, so you need to listen to spoken and unspoken messages – see the table above for examples of ‘yes’ and ‘no’ messages.
3. Respect: Don’t let your eagerness to be sexual with someone overcome the need to respect that person’s right to say ‘no’. If there is any uncertainty about consent, show respect and stop what you are doing. 

For more on how to get consent, see Body Safe NZ.(external link)(external link) 

Sexual assault is also referred to as sexual violation. It is any unwanted or forced sex act or behaviour that has happened without your consent. 

Sexual assault may include:

• rape (sexual intercourse without consent)
• unlawful sexual connection (sexual touching without consent or agreement)
• acts of indecency (someone exposing themselves to you). 

Sexual violation is a crime. If you are charged and found guilty of sexual violation, you can go to prison for up to 20 years. Read the legal definition in the Crimes Act 1961.(external link)(external link)

Even if you know the person it is still sexual assault. Consent must be given for each time you engage in sexual behaviour. Even if you have had consensual sex with the person before, sex without consent is still sexual assault. Read more about sexual assault.

If it is an emergency, please phone 111.

If you need help dealing with sexual harm you can also contact Safe to Talk(external link)(external link) for free, confidential and non-judgmental support from trained specialists. Available 24/7 with interpreters for 44 languages, free call 0800 044 334 or free text 4334.