Why is consent important?
At the moment we are seeing a lot of articles about consent, the importance of consent, and how to tell if you have consent. This is an important topic, because of the damage done to the victim, and the potential criminal penalties for sex without consent are 14 years gaol, 20 years for aggravated sexual assault, or life for aggravated sexual assault in company.
What probably doesn't get discussed as much is what the laws in Australia say about consent and knowledge of consent.
What is consent?
A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.
The Court will consider that a person knew that the other person didn't consent if the person is reckless as to whether the other person consents, or the person has no reasonable grounds for believing that the other person consents.
The Court will have regard to the steps that the person took to ascertain whether the person consents, and the Court will not have regard to whether a person was too drunk to understand that there was no consent.
The legislation specifically says that none of the grounds set out in the legislation limits the grounds on which it may be established by a Court that a person does not consent to sexual intercourse. What that means, when you aren't speaking legalese, is that there is no check list you can go through to make sure you have consent. Consent depends on the circumstances. Your knowledge of the absence of consent depends on the circumstances. In short, be sure that there is actual consent.
What isn't consent?
Consent is not consent if it is obtained through coercion or threat. Coercion can include the abuse of a position of power, and threat can include a threat against a third party. The threat does not have to include the threat of force, or the threat of physical harm.
Maybe is not consent.
The absence of no is not consent. It is not consent if a person cannot give consent, either due to age, cognitive ability (for instance a temporary or permanent disability) or the person is unconscious or asleep.
A person may be found to be incapable of consenting if they are substantially intoxicated by alcohol or drugs, even if they have said yes. A person does not give consent if they are under a mistaken belief as to the identity of the other person (for instance the person is pretending to be someone that they are not). A person does not consent if they believe the person they are having sex with is their spouse, and it turns out the person is not their spouse.
A person does not consent if they consent if they believe the sex is for health or hygiene reasons.
A person does not consent if they are also at the time being unlawfully detained.
The absence of any physical resistance is not consent.
A person may withdraw consent part way through, at which point the other person must stop.
What is sexual intercourse?
As part of this whole question of consent, there is a question that runs alongside it which is consent for what?
Most people think of sex and consent between a male and a female as penetrative sexual intercourse, however oral sex received by a male or female is also included in the legislation and any object being used to penetrate the other person is included. As with the other advice in this article, if you think it might be sex, don't be 'pretty sure' make sure you have consent.
So what should you do?
There a lot of situations mentioned above where particular conduct does not amount to consent. Essentially sex with someone you just met, particularly where there is alcohol involved, should be approached with caution.
John Oliver shared a pretty good video on sex education in one of his segments that said - "If you think you might be able to persuade someone to have sex even though they don't want to, don't. So if you're unsure if someone wants to have sex with you ask. Even if you're kind of sure, ask."
Don't be kind of sure, be certain. It might not be romantic, but particularly if you don't know the person well ask the question directly, and make sure you get a direct answer.