The words “Me too” have become a global phenomenon in the past six months, searched for on Google in 196 countries around the world. People everywhere are talking about sexual assault, and some of the stories coming out are pretty confronting.
Just ask Harvey Weinstein. The big-shot movie producer was caught with his pants down (so to speak) when more than 50 women – including household names such as Rose McGowan and Gwyneth Paltrow – came forward in 2017 with allegations of sexual assault and indecent assault against him.
It’s important to note that at the time of writing, nothing has been proven and no charges have been laid against him. However, New York’s chief of detectives, Robert Boyce, told reporters on 7 March that police have gathered a “considerable amount” of evidence in their investigation. The facts are now before the district attorney, who will decide whether Weinstein will be formally charged.
In the meantime, the scandal has sparked a protest movement called “Time’s Up”, which aims to make the workplace safer for women by stopping sexual assault, abuse and harassment. Hollywood is on board, with scores of actresses wearing black to the recent Golden Globe awards in Los Angeles in a show of solidarity.
So, what is “safe sex” in a legal sense?
Consent is a very big deal
The first step is to check the Crimes Act 1900 (NSW). This handy piece of legislation mandates that consent must be “freely and voluntarily” given. It seems simple enough, right?
Actually, the exact meaning of the words “freely and voluntarily” depends on the circumstances of each case, but there are a few red flags you should definitely keep in mind on your next Tinder date.
“If you have any doubt as to whether someone is consenting because they’re drunk or high or for some other reason, you shouldn’t have sex with them,” says Andrew Tiedt, a criminal lawyer and partner at Armstrong Legal.
“Among other things, it means someone who is drunk may not be consenting, someone who is asleep is definitely not consenting, and someone who is tricked or deceived doesn’t consent.”
This extends to things like pretending to be someone you’re not, telling someone you’re using a condom when you’re not, or continuing to have sex with someone after they’ve changed their mind.
Sex can mean a few things
NSW criminal law actually doesn’t use the word “rape”. Instead, the Act says any person who has sex with another person while knowing they’re not consenting is committing “sexual assault”.
Sex in this context means genital penetration (with any body part or other object) or oral sex to a person of either gender. But if you want to know all the ins and outs of it (pun intended), you can click here.
However, you don’t have to be actually having sex with someone to get into trouble.
For example, if you touch someone who doesn’t want to be touched, or expose yourself to someone who doesn’t want to see you, you might find yourself facing a charge of indecent assault.
This provision covers everything from kissing someone who doesn’t want to be kissed, to groping someone at a pub, or showing your genitals to someone who doesn’t want to see them (yes, this law can extend to unsolicited dick pics).
When do your advances go too far?
Sexual harassment falls under the Crimes (Domestic and Personal Violence) Act 2007. The law says you can’t intimidate a person, which basically means you can’t repeatedly touch or contact a person to the point where they fear for their safety.
“Being persistent in pursuing someone isn’t necessarily a criminal offence, but the line is very fine between enthusiastically pursuing someone and harassing them,” says Tiedt.
“People can sometimes find it hard to recognise that what they’re doing has gone way over the line in terms of becoming intimidation or harassment. If you have any doubt as to whether your advances are appreciated, you shouldn’t pursue that person.”
Penalties for sexual assault are serious
“The maximum penalty for sexual assault, depending on the circumstances, is up to life imprisonment, but sentences that extreme are not common,” says Tiedt.
“Someone who commits the offence of sexual assault, generally speaking, will be sentenced to full-time imprisonment, but there are a lot of variables.”
In fact, data from the NSW Higher Courts shows that 88 per cent of offenders convicted of sexual intercourse without consent go to prison. Meanwhile 97 per cent of offenders convicted of aggravated sexual assault go to prison for anywhere between 12 months and 20 years.
Convictions of indecent assault or harassment may be less severe, depending on the circumstances.
Therefore, if you’re ever in doubt, the safest thing to do is to keep it in your pants and go home.