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Consent, sexual penetration and touching

36 Consent

(1) For the purposes of Subdivisions (8A) to (8E), consent means free agreement.

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

(a) the person submits to the act because of force or the fear of force, whether to that person or someone else;
(b) the person submits to the act because of the fear of harm of any type, whether to that person or someone else or an animal;
(c) the person submits to the act because the person is unlawfully detained;
(d) the person is asleep or unconscious;
(e) the person is so affected by alcohol or another drug as to be incapable of consenting to the act;
(f) the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act;
(g) the person is incapable of understanding the sexual nature of the act;
(h) the person is mistaken about the sexual nature of the act;
(i) the person is mistaken about the identity of any other person involved in the act;
(j) the person mistakenly believes that the act is for medical or hygienic purposes;
(k) if the act involves an animal, the person mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes;
(l) the person does not say or do anything to indicate consent to the act;
(m) having given consent to the act, the person later withdraws consent to the act taking place or continuing.

Note
This circumstance may apply where a person gave consent when not so affected by alcohol or another drug as to be incapable of consenting

35A Sexual penetration

(1) A person (A) sexually penetrates another person (B) if—

(a) A introduces (to any extent) a part of A's body or an object into B's vagina; or
(b) A introduces (to any extent) a part of A's body or an object into B's anus; or
(c) A introduces (to any extent) their penis into B's mouth; or
(d) A, having introduced a part of A's body or an object into B's vagina, continues to keep it there; or
(e) A, having introduced a part of A's body or an object into B's anus, continues to keep it there; or
(f) A, having introduced their penis into B's mouth, continues to keep it there.

35B Touching

(1) Touching may be done—

(a) with any part of the body; or
(b) with anything else; or
(c) through anything, including anything worn by the person doing the touching or by the person touched.

(2) Touching may be sexual due to—

(a) the area of the body that is touched or used in the touching, 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 doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or
(c) any other aspect of the touching, including the circumstances in which it is done.