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Sexual harassment and sexual assault are terms that are often used interchangeably, but they are legally distinct, and the difference matters when it comes to your rights and your options.
If you’ve experienced unwanted sexual conduct, whether at work, in an institutional setting, or in your personal life, you may be wondering whether what happened to you is serious enough to act on. The short answer is: it almost certainly is.
If something has happened to you, or to someone you care about, understanding that distinction can be the first step toward getting the help and justice you deserve.
At Wyatts Lawyers, our personal injury and abuse lawyers help people every day to understand exactly where they stand. Whether you’re navigating a workplace sexual harassment complaint, considering a civil claim for sexual assault, or simply trying to make sense of what happened to you, this guide walks you through the key legal distinctions and what they mean for you.
Key Summary
- Sexual harassment is typically unwanted conduct of a sexual nature, which may or may not be physical.
- Sexual assault is unwanted physical sexual conduct carried out without consent -and it is a crime punishable by law.
- Harassment can escalate into assault, and a single incident can give rise to both a civil claim and a criminal matter.
- Both can occur in the workplace. If either has caused you psychological injury, you may be entitled to make a workers compensation claim.
- You have options. Whether you want to report to the police, make a formal complaint, or simply understand your rights, speaking to a lawyer is the best first step. Time limits apply.
What is sexual harassment?
Under Australian law, sexual harassment is defined as unwelcome conduct of a sexual nature that a reasonable person would expect to cause the recipient to feel offended, humiliated, or intimidated. This definition comes from the Sex Discrimination Act 1984 (Cth), and similar protections exist under NSW anti-discrimination law.
Critically, the law does not require that the harasser intended to cause harm. What matters is the impact on the person who experienced it and whether a reasonable person in that situation would have felt offended or humiliated.
What is sexual assault?
Sexual assault is a criminal offence under Australian law. It occurs when a person engages in sexual activity with another person without their consent, or in circumstances where consent cannot be freely and voluntarily given. In New South Wales, sexual assault is governed by the Crimes Act 1900 (NSW), which covers a broad range of non-consensual sexual acts, not only rape.
Critically, consent must be active and ongoing. A person does not consent simply because they did not physically resist, because they have consented in the past, or because they were in a relationship with the other person. Intoxication, coercion, and certain power imbalances can all affect whether valid consent existed.
What does sexual harassment look like?
Sexual harassment can take many forms. It includes, but is not limited to:
- Making intrusive or offensive questions about someone’s sexual life or preferences
- Unwelcome sexual advances or requests for sexual favours
- Sexually explicit or suggestive comments, jokes, or “compliments”
- Unwanted touching, including brushing against someone or “incidental” physical contact
- Sending sexually explicit messages, images, or videos -including via work email, social media, or a personal phone
- Displaying pornographic or sexually offensive material in a shared space
- Staring or leering in a way that is clearly sexual in nature
Important: Sexual harassment can happen in person or online. It can come from a manager, a colleague, a client, a contractor, or even someone outside your organisation. If it happens in connection with your work, your employer may be legally responsible.
When does sexual harassment become sexual assault?
Sexual harassment becomes sexual assault when the behaviour involves non-consensual physical contact or coercion of a sexual nature. Harassment is typically verbal or non-physical, while assault includes unwanted sexual touching or forced sexual acts.
A pattern of escalating sexual harassment may culminate in sexual assault. And a single incident of unwanted sexual touching may constitute both sexual harassment (giving rise to a civil claim) and sexual assault (which may be reported to police as a criminal matter).
The most significant distinction between sexual harassment and sexual assault is this:
| Sexual Harassment | Sexual Assault | |
| Definition | Unwelcome conduct of a sexual nature that causes offence, humiliation, or intimidation | Non-consensual sexual activity or physical contact of a sexual nature |
| Physical contact required? | No | Yes |
| Is it a crime? | No (civil/administrative matter) | Yes (criminal offence) |
| Governing law | Sex Discrimination Act 1984 (Cth) | Crimes Act 1900 (NSW) |
| Legal pathways | Discrimination complaint, civil claim, workers compensation | Police report, criminal prosecution, civil claim, Victims Support Scheme |
| Consent relevant? | Not the primary test | Central to the legal definition |
It is worth noting that these categories are not mutually exclusive.
What does “consent” mean under the law?
Consent is the cornerstone of sexual assault law in Australia. NSW content law is clear: consent must be free, voluntary, and informed. A person does not consent if they are asleep or unconscious, intoxicated, under duress or threats, or if they are incapable of consenting due to age or cognitive impairment.
Importantly, silence is not consent, and previous consent to sexual activity does not mean consent was given on another occasion. The law recognises that consent can be withdrawn at any time.
Sexual harassment in the workplace
Workplace sexual harassment is one of the most common forms we see at Wyatts. It covers a broad spectrum -from a manager who makes sexual favours a condition of your employment or advancement, to a working environment so permeated with sexual comments, offensive jokes, or inappropriate conduct that it becomes impossible to do your job with dignity. Whether the conduct was directed at you specifically or formed part of a broader toxic culture, it can still be unlawful.
Sex Discrimination Act
Recent changes to the Sex Discrimination Act now place a positive duty on employers to proactively prevent sexual harassment – not simply to respond once it has occurred. If your employer failed to take reasonable steps to protect you, they may share legal responsibility for what happened.
Workers Compensation & Psychological Injury
What many people do not realise is that if you have been subjected to sexual harassment at work and it has caused you psychological injury, such as anxiety, depression, or post-traumatic stress, you may also be entitled to make a workers compensation claim in NSW.
A psychological injury caused by workplace harassment is a compensable injury under the Workers Compensation Act 1987 (NSW), just like a physical one. This can mean entitlement to weekly benefits if you are unable to work, as well as funding for treatment and, in more serious cases, a lump sum payment for permanent impairment. Many of our clients are surprised to learn this pathway exists, and that pursuing it does not prevent you from also taking action under anti-discrimination law.
Real-world workplace sexual harassment scenario
A female employee repeatedly receives sexual comments from a male colleague about her appearance. She tells him to stop. The comments continue. Her manager dismisses her concerns, saying the colleague “means no harm.” She develops anxiety and is eventually unable to return to work. She may have grounds for both a discrimination complaint and a workers compensation claim for psychological injury -and potentially a claim against her employer for failing in their duty of care.
What can you do if you have experienced sexual harassment or assault?
Knowing your options is empowering. Here is an overview of the pathways available to you:
For sexual harassment at work
If the harassment occurred in the workplace and has caused you a recognised psychological injury, a workers compensation claim may be available to you in NSW – covering any lost income, treatment costs, and potentially a lump sum for permanent impairment. Certain legal pathways can often be pursued alongside one another, and our team at Wyatts Lawyers can help you understand which combination best fits your situation.
For sexual assault
You have the right to report to police, and we strongly encourage anyone who feels safe to do so to consider this step – both to access support and to hold the perpetrator accountable. You can also seek support through NSW Victim Services, as well as NSW Health sexual assault service, which are free and confidential regardless of whether you choose to make a police report.
In addition, you may be entitled to bring a civil intentional tort claim directly against the person who assaulted you, seeking compensation for the physical, psychological, and financial harm you have suffered. This is a separate legal action from any criminal proceedings and may be pursued whether or not the matter goes to court. The NSW Victims Support Scheme may also provide financial assistance and access to counselling for eligible victims.
Workplace sexual assault
If the sexual assault occurred in a workplace context or involved a person in a position of authority over you, you may have claims against both the individual perpetrator and the employer. This is an area where our team at Wyatts has significant expertise -including in workplace sexual assault and harassment and cases involving complex employer liability.
Time limits matter
Many compensation claims are subject to strict time limits. Workers compensation claims should be made as soon as practicable after the injury. If you are thinking about taking action, the sooner you speak to a lawyer, the better – even if you are not yet sure what you want to do.
Wyatts Can Help
You are not alone – and you do not have to figure this out by yourself.
We know that reaching out about an experience of sexual harassment or assault takes enormous courage. Many of our clients tell us they waited months or years before seeking legal advice. This was because they were unsure whether what happened “counted,” feared they would not be believed, or simply felt overwhelmed by the process.
At Wyatts, our professional lawyers offer free initial consultations and work on a “No Win No Fee” basis. This means you will not pay legal fees unless your claim is successful. We will handle the paperwork, gather the necessary evidence and support you at every step so you can focus on your recovery.
We are specialists in sexual abuse and assault, including workplace assault, family assault and physical assault.Call our expert compensation lawyers today at 1800 773 880 to find out what you are entitled to.
