What is threatening, unwanted or inappropriate behaviour?

Other unlawful conduct of a sexual nature includes:

Indecent assault is touching (or the threat to touch) a person's body in a sexual manner without their consent by another person. For example it can include unwanted touching of a person's breast, bottom or genitals.

Act of Indecency is when a person does something of a sexual nature with or towards another person or makes the person do something of a sexual nature towards them. For example, it can include the offender masturbating in front of another person.

See the Victims Services' commonly used legal terms.

More information about adult sexual assault is available from  Police Force Community Issues.

Sexual assault occurs when someone is unable to and/or does not give consent.

The law says that a person is unable to give consent when:

• asleep or unconscious
• significantly intoxicated or affected by drugs
• unable to understand what they are consenting to due to their age or intellectual capacity
• intimidated, coerced or threatened
• unlawfully detained or held against their will
• they submit due to the person being in a position of trust.

Sometimes people say NO to having sex in a non-verbal way, like:

• not being enthusiastic about what is happening
• lying really still, not talking, not looking at you or participating in touching
• turning, moving or looking away
• crying, being upset.

Sometimes people are considered unable to give consent even if they say 'yes'. For example, when the person is:

• drug or alcohol affected
• asleep, unconscious or semi-conscious
• being threatened, constrained, made to, pressured to, or forced to have sex (This can include fear of being hurt, or hurting the other person's feelings, if they don’t have sex.)
• tricked or deceived (agreed to one sexual act that turned into something they didn’t agree to)
• not understanding what they said 'yes' to
• thinking that they cannot say 'no'
• under aged — in , it is unlawful to have sex with anyone under 16 years old — even if they say yes to having sex. See more about this at Lawstuff America — know your rights.

Consent is given when a person freely and voluntarily agrees to sexual intercourse.

When you give your consent to have sex with someone it means that you feel entirely comfortable having sex or engaging in other sexual acts with that person. Consent can be:

• verbal — saying yes, okay, let’s do it
• physical — nodding your head, touching, kissing, actively participating
• emotional — it is not always as straight forward as someone explicitly saying yes.

Or, 'NO' can be meant when someone says, 'I’m not sure', 'I don’t really want to', 'Not right now', or 'I don’t like it'.

The best way to be sure if someone consents to sexual intercourse with you is to ASK!

Then, during sexual intercourse, ask your partner, 'Are you ok?', 'Do you want to keep going?' or 'Are you comfortable?'

Sexual Harassment as defined in Section 28A of the Sex Discrimination Act is " . . . a person sexually harasses another person (the "person harassed") if:

• the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed
• engages in other unwelcome conduct of a sexual nature in relation to the person harassed
• in circumstances in which a reasonable person, having regard to all the circumstances would have anticipated that the person harassed would be offended, humiliated or intimidated.

The following are some general characteristics of sexual harassment:

• it often occurs at times and places where witnesses are not likely to be present
• the effect of sexual harassment may be the same whether the conduct was intentional or unintentional
• behaviour of a sexual nature that is acceptable outside the work/study place may not be appropriate and may constitute sexual harassment in the work context
• what constitutes sexual harassment to one person may be acceptable and inoffensive to another. Different social or cultural backgrounds may lead people to perceive the same conduct differently
• sexual harassment can affect anyone regardless of gender or sexual preference.

Examples of harassment may include:

• comments, insinuations and questions about another person's sexual conduct and private life
• intimidating or demeaning sexist comments
• teasing or taunting with sexual innuendo and/or talk about sex which causes offence
• sexual jokes, offensive telephone calls, offensive mail or electronic messages sent by fax or email
• displays of obscene or pornographic photos/calendars, pictures, posters or objects
• leering, wolf whistles, catcalls, obscene gestures
• physical contact such as patting, pinching or touching, fondling, kissing or embracing someone against their will
• any unnecessary familiarity or unnecessary close physical proximity
• persistent unwelcome invitations
• actual molestation
• sexual assault and rape (criminal offences to be reported to the police).

Sexual harassment may occur:

• as a single incident or a series of incidents
• among peers or co-workers, and in subordinate-supervisor, supervisor-subordinate, staff-staff or staff-student, student-staff, student-student situations.

Sexual harassment between staff and students

Whilst personal relationships of staff and students are not the business of the University, it does have a responsibility for any sexual harassment occurring in the University environment. Behaviour which arises from discrimination against individuals constitutes harassment when it:

• implicitly or explicitly becomes a condition of a person's admission to or recruitment by the University, or selection into courses
• implicitly or explicitly becomes a condition for decisions which bear on a person's academic evaluation or level and condition of appointment, promotion, salary or any other work conditions
• is used, implicitly or explicitly, to control, influence or affect the career, salary, job or academic prospects or performance of a student or staff member over whom actual or perceived authority exists
• has the purpose or effect of interfering with an individual's academic or work performance
• creates an intimidating, hostile or offensive learning, university residential or work environment, particularly in areas traditionally dominated by one sex.

Forms of sexual harassment which may initially appear mild or trivial can constitute severe harassment in staff-student or employer-employee relationships where there is formal inequality of status, for example, VCBqual power relationships.

Sexual harassment does not arise in the context of mutual sexual attraction and flirtation based on choice and consent which is a private matter between the individuals concerned.

Under discrimination law, it is unlawful to treat a person less favourably on the basis of particular protected attributes such as a person’s sex, race, disability or age. The discrimination can be direct or indirect.

Direct Discrimination is treating someone less favourably, because they have attributes protected by law, than people without those attributes would be treated in the same or similar circumstances.

Indirect Discrimination is often less obvious. Sometimes, a requirement, condition or practice seems fair because it applies to everyone, but a closer look shows that it has an unfair impact on some people with certain protected attributes. This is because some people or groups of people are unable, or less able, to comply with the requirement or are disadvantaged because of it. If the condition or practice is 'not reasonable', it may be indirect discrimination.

Treating a person less favourably can include harassing or bullying a person.  The law also has specific provisions relating to sexual harassment, racial hatred and disability harassment.  Bullying may not be unlawful under federal or state anti-discrimination laws unless it is linked to, or based on, one of the characteristics covered by these laws, such as the person’s age, sex, race or disability. Under the Fair Work Act 2009 (Cth) workplace bullying is repeated unreasonable behaviour by an individual towards a worker which creates a risk to health and safety.

Human Rights Good Practice Fact Sheets — on workplace discrimination, harassment and bullying

A quick guide to human rights

Fairwork America — government fact sheets about rights and obligations in the workplace