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Consent: Going beyond No means No

By Emma Davidson 1 October 2018 6
Man and woman smiling and eating ice cream together

Affirmative consent – it’s not that hard to understand.

Seems like everyone is talking about sex right now – even our MLAs. The ACT Legislative Assembly are considering amending the laws so that it is clear that consent must be freely and voluntarily given, with an inquiry due to report by the end of October.

The current definition doesn’t say what consent is, it just gives examples of what consent isn’t. Examples of things that negate consent include being unconscious or threats of violence. The change being considered would define that consent must be a free and voluntary agreement. This means that not physically resisting assault cannot be considered consent.

Seems logical, doesn’t it? What we want is a definition of consent that says “yes means yes”, not just “no means no”. That if you’re initiating activity with someone, they need to clearly communicate to you, freely and voluntarily, that they are into it.

There are people who are worried that changing to an affirmative definition of consent will be too confusing for our community. But it’s actually not that complex.

If you wanted to play contact sports with someone, you’d ask first – and if they said no, you wouldn’t tackle them to the ground anyway, even if you’ve played on the same rugby team before.

If you wanted to have a coffee with someone, you’d ask first. And if they said they prefer tea, but you are macchiato or forget it, you wouldn’t try and force them to drink a dark roast with just a stain of milk.

Even kids can understand their rights and how consent works using an affirmative definition.

Let’s look at sex like going for a bike ride with a friend. It should be fun, and everyone involved should be happy that this is what they’re doing.

We cannot go on with women being the gatekeepers of sex in society, constantly having to be ready to defend themselves against assault. Laws that make it clear that “yes means yes” will be a step in the right direction. Because everyone wants sex to be a good time, for themselves and for their partner.

Wondering what to say if you have to say something about sexual violence? Check out What To Say by Women’s Centre for Health Matters.

What’s Your opinion?


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6 Responses to
Consent: Going beyond No means No
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madelini 11:18 am 05 Oct 18

Aside from other commenters, who appear to be attempting to be deliberately obtuse and pernickety regarding the analogies used in the article, I am an enthusiastic supporter of affirmative consent.

The assumption should *always* be no, unless the person you are hoping to have sex with says yes. Often, people who feel that they are pressured or coerced into having sex simply freeze, or endure it hoping it will be over quickly. That is not affirmative consent. Ideally, after every sexual encounter, all parties should feel good about themselves and their decisions; of one party does not, then that is worth investigating.

It is very simple. Ask people what they want. Ask if this, or that, is okay; make suggestions in the form of questions. Consent is not a mood killer, and if you’re worried that it might be then you should review your decisions up until this point. After all, there is nothing sexier than knowing – absolutely and unequivocally – that the person you are having sex with wants to have sex with you.

    chewy14 11:06 pm 05 Oct 18

    It’s not being pernicky, it’s pointing out the obvious logical flaws with the anecdotes and the reason why such “affirmative consent” legislation is unworkable and doesn’t recognise the reality of human sexual relationships.

    Firstly, so much of our language is non verbal, by requiring verbal cues you are changing what consent actually means.

    By making consent required at every escalation of physical relations you are basically making the majority of sexual encounters potential sexual assaults based on a whim.

    You may “think” these types of laws are simple but they really aren’t. Crimes shouldn’t be based on anything so flimsy.

    Garfield 2:09 pm 07 Oct 18

    I understand how some people could see this as a simple issue, but I suspect it’s anything but, because of the wide array of types of interactions.

    Let’s look at something simple, the dance floor at a night club. A couple are dancing close together and one slides their hand down to the other’s rear. I bet out of 100 times that happens prior permission may be sought once, at most. Under current laws I’m guessing there would be no absence of consent until the hand was rejected. Under the proposed change I’d suggest that technically an assault just occurred.

    From that simple example its not hard to come up with other more graphic scenarios where actions that are currently OK would technically become criminal.

    If we move on to out of the box scenarios like BDSM, it’s easy to see how this change could mean actions that are currently OK could technically become criminal if the law were to change.

    I’ll leave this with a thought about the attractiveness of confidence. If someone has to stop and ask “May I kiss you?” “May I caress your …. ?” “May I …. ?”, the people who find confidence in a partner attractive may find their enjoyment diminished.

Blen_Carmichael 11:26 am 02 Oct 18

“If you wanted to play contact sports with someone, you’d ask first – and if they said no, you wouldn’t tackle them to the ground anyway, even if you’ve played on the same rugby team before.”

Interesting. I played rugby league during my adolescence and this has got me wondering. Without thinking so much in these terms, I assumed the fact that we were on the field equated to implied consent for me to regard the interaction as contact sport. Silly me. I should have approached each team member individually prior to kickoff and sought his consent accordingly.

This gets even more confusing. If a member of the opposing team were making a beeline for the tryline and I sung out (as the author suggests) “Sir, I seek consent to tackle you to the ground in order to prevent from you from scoring a try,” I suggest he would either have ignored me or laughed derisively before going on to score. I’m very confused with this analogy.

chewy14 11:05 pm 01 Oct 18

“If you wanted to play contact sports with someone, you’d ask first – and if they said no, you wouldn’t tackle them to the ground anyway, even if you’ve played on the same rugby team before.”

No but if I started passing a rugby ball to them and they kept passing it back without saying anything, I wouldn’t be worried that they didn’t really want to play.

“If you wanted to have a coffee with someone, you’d ask first. And if they said they prefer tea, but you are macchiato or forget it, you wouldn’t try and force them to drink a dark roast with just a stain of milk.”

No, but if I accidentally assumed they wanted a coffee and bought them one, I wouldn’t sit there wondering if they really wanted tea if they sat there and drank the coffee.

This is the problem with these types of laws and these ridiculously silly analogies, they are never thought all the way through and either ignore it actively work against some of the most fundamental tenets of our judicial system.

shstr 10:36 pm 01 Oct 18

It is my understanding that the difficulties of assessing the presence of consent arise because there are usually no witnesses and one is left with evaluating the account of one party with the account of other party. So how does this remedy anything if it’s just one person’s word against another?

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