Affirmative consent is good for everyone

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The following article contains discussion of sexual and domestic violence.

This year the New South Wales Government announced, as part of its initiative to tackle sexual violence, that it is moving forward with a campaign to encourage active consent. Active or affirmative consent is not a new idea, but in recent years it has gained traction in the wake of US college campus rape allegations.

Woman kisses manFrom a legal perspective, defining active consent can be tricky. The practical basis of the approach, however, is pretty simple: consent for each sexual encounter must be voluntary, affirmative, and unambiguous. In addition, consent must be free of coercion or impediment, and can be withdrawn at any time.

To put it more plainly: consent is the active presence of a 'yes', not the passive absence of a 'no'. Consent is something given and received; it cannot be assumed.

Understandably, many people find active consent threatening. It promotes a standard that has not always been followed (even by people who are willing participants in sexual activity). People don't like to think of themselves as potential rapists, so they recoil from anything that might threaten this sense of self. That leads to scaremongering from people like News Corp's Joe Hildebrand.

In July Hildebrand wrote an article mocking the NSW push for affirmative consent. His premise is that the government should not promote active consent because it's unnecessary and, potentially, dangerous ('Stalinesque' is the word used). Active consent, he insinuates, will tar innocent people as violent sex offenders, because they don't want to go through the onerous task of explicitly checking that their partner is okay with what's happening.

We are to believe that affirmative consent is overly burdensome and — in this new world order — anything short of a notarised legal document will become insufficient for proving consent. Seemingly, Hildebrand cannot imagine any of the myriad ways a person could explicitly provide consent without involving a JP.

All this nonsense is unnecessary, anyway, because apparently 'every decent person knows what rape is, and knows it is repugnant'. But does every decent person know what rape is?

 

"Rape may not always carry the overt markers of violence; that does not stop it being rape. It also does not make it any less devastating."

 

Hildebrand says identifying rape is obvious, but he paints a picture of consent as a bewildering and elusive concept. Here's the problem with that: if you cannot identify consent, you cannot identify rape.

The example Hildebrand uses to prove his point — that we all know rape when we see it — is the rape and murder of Eurydice Dixon.

While it's true that Dixon's case is as clear-cut as they come, the problem with using it as the only example is that it does not represent the most common manifestations of sexual assault. Rape does not just come in the form of strange men who grab women off the streets. In fact it is more frequently committed by someone known to the victim.

For example, rape is often perpetrated by a coercive partner, or a predator taking advantage of somebody who is incapacitated. Two thirds of sexual assaults happen in residential locations. One in six women, and one in 16 men, have experienced sexual violence from a cohabiting partner. In these instances rape may not always carry the overt markers of violence; that does not stop it being rape. It also does not make it any less devastating.

The Australian Law Reform Commission noted in its 2010 inquiry into family violence that there is ambiguity across jurisdictions about what defines consent (this is still the case today). The ALRC continues by expressing concern that, as it stands, an accused person may claim 'honest belief' that they had consent (even if they did nothing to confirm this belief). Though the idea of affirmative consent is not mentioned in the report, it is clear that 'honest belief', without a framework of affirmative consent, is a murky term.

Many survivors of sexual assault internalise feelings of guilt about whether they were clear in their rejection of sexual advances. The current model, where consent can be assumed, immediately puts survivors on the backfoot; they must prove they rejected a partner in a way that was understood. On the contrary, a culture where unambiguous, mutual consent must be provided means there is no onus on people to 'be clearer' about their lack of interest.

The move to a culture of active and affirmative consent is good for everyone involved. Though we know that false rape claims make up only a tiny percentage of allegations, a classic argument of those opposed to active consent (including Hildebrand) is that it paints all men as predators until proven otherwise. On the contrary, active consent should actually provide greater peace of mind to men than the current mainstream approach. There is, inherent in the concept of active consent, a way to alleviate any confusion. When in doubt, ask. If the response is not unambiguous and affirmative, then do not proceed.

In the 1980s, Australia modernised its laws to reflect the reality that not all sex within a marital context was consensual. This does not mean that all marital sex before the 1980s was rape. In the same way, updating our framework for how consent is given and received does not invalidate all the consensual sex that has happened in the past. It simply means that we now expect less ambiguity and hold ourselves to a higher standard of clarity.

There is more work to be done in making sure people appreciate the importance of consent. It is a shame that instead of supporting these changes we get talking heads pushing back against an explicit, mutually beneficial approach to consent.

 

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Tim HuttonTim Hutton is a high school teacher and occasional freelance writer. His ramblings can be found over at www.mrhutton.com.

 

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Topic tags: Tim Hutton, rape, consent

 

 

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Existing comments

My partner and I still give and ask each other for consent, and we are engaged. I think it's sweet/romantic to know someone is thinking that much about your safety.
Oscar | 31 August 2018


Consent means "permission for something to happen or be done". Sounds clear cut. But, of course, in all relationships there is inequality and the inequality may fluctuate between persons. Inequality in that sense may mean a lack of regularity. Sometimes it's difficult for a woman to articulate clearly a "yes" or "no". And in that case sensitivity is required, subtle signs need to be noted and an assumption of "no" needs to be acted upon. This upholds the dignity of both persons.
Pam | 02 September 2018


I very much appreciated your comments, and reframing of the implications of giving explicit consent for sexual acts. I would like to add that the reluctance to ask for 'clarification' - in this case- a positive statement of yes- is part of the mentality of this culture, in which people rarely ask each other what is meant by a given sentence, or even word, or body language. People seem to assume that what is in their mind is the only way to interpret what the other person has said. The fact that each one of us interprets -give a meaning, which could or could not be correct, is not a mentality governing our everyday style of common communication. The other obstacle to the acceptance of a positive consent is the fact that in a sexual encounter the focus is not necessarily to include the other, but it is often to 'get to you want' So asking or waiting for a positive, yes, I am ready, seems out of the question to people whose intention is to 'get' rather than to share. I hope it is clear that I advocate clear, positive explicit consent in the sexual encounter, at the same time I can see the cultural hurdles. Thank you.
Antonina Bivona | 03 September 2018


My wife and I will have been married for 35 years tomorrow. I believe that we have always understood each other well. I find it very sad that one's relationship with one's beloved ends up becoming a legal minefield . Love for us means accepting and respecting each other's feelings and needs , not ending up in some strange set of rituals during an intimate time when one is reaffirming acceptance of the significant others love. We are very amused by this new 'social order'. We do accept that the nature of intimacy between couples has changed significantly during our married life and that many couples are not married but are in 'relationships' at various levels of commitment.
Gavin | 03 September 2018


Then there is the children's author, John Marsden, who, in an advice book directed to teenage boys, teaches them that "no" does not necessarily mean "no" but that it means the teenage boys have to be a bit more presuasive and persistent to get to an implied yes. What part of the word "no" does he not understand?
Katrina Haller | 03 September 2018


And another thing. We need to stop teaching very young children that they 'must' consent to being hugged and kissed by near strangers, including family members. For many children, especially girls, this morphs over time into the unconscious belief that being a good person means allowing physical demonstrations of affection even when you're not in the mood. Giving, as well as seeking, active consent needs consistent development from an early age. It can be tricky to know how to do it as an adult if it's been discouraged throughout childhood.
Joan Seymour | 05 September 2018


This "affirmative consent" approach may sound good, but it seems to completely ignore the nature of human sexuality. All that messy passion and emotion and irrationality, not to mention the fact that sometimes sexual desire/attraction can be an overwhelmingly powerful force - all this is just brushed aside. Of course, I'm not saying that we should be allowed to let our passions run wild. But I don't know how we can come up with a workable sexual ethic if we ignore the realities involved. Above all, I think, we need to put it in the context of relationship. It may be a short-lived or casual relationship, but that's what it is. And relationships work best when both partners see themselves as being on the same side, and they work together to ensure that each other's needs and expectations can be met, as much as possible. If one has a problem, they both have a problem. But this concept, it seems, is just too much at odds with our individualistic culture. Nonetheless, I'm convinced that this is the only context within which human sexuality can become a positive force and not a problem, which it seems to have been throughout history!
Cathy Taggart | 11 September 2018


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