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.
From 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 In addition, consent must be free of coercion or impediment, and can be withdrawn at any time.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.
1800 Respect
National counselling helpline
Telephone: 1800 737 732
Call 000 if you are in danger
Tim Hutton is a high school teacher and occasional freelance writer. His ramblings can be found over at www.mrhutton.com.