Page 4633 - Week 12 - Thursday, 1 November 2018

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People want a clear definition of what consent is. Rather than relying on what does not constitute consent, the affirmative consent model defines consent in terms of a positive act. A commonly used phrasing defines consent as a “free and voluntary agreement”, and that consent does not exist if the person does not say or do anything to communicate consent.

Affirmative consent exists in Tasmania and Victoria, and New South Wales are currently in the process of reviewing their legislation. The affirmative consent model puts the focus on open communication from all participants. Communication is essential for healthy and respectful sexual relationships. It represents a shift away from the concept of “no means no” to “yes means yes”.

Affirmative consent is more in line with modern understanding of trauma. In the context of sexual assault, often victims freeze and are unable to move or speak. This does not mean that they are consenting but that they are unable to say no in the moment. It can be extremely traumatic for survivors to be asked questions like, “Why didn’t you say no? Why didn’t you fight?” This can lead to feelings of shame and helplessness.

Awareness of this response and the importance of affirmative consent both validates survivors’ experiences and educates people that a lack of response does not mean that a person is consenting to a sexual activity. In the criminal justice system, this can lead to situations where a perpetrator is not convicted, despite a court finding that the victim did not consent.

Members would be aware of the recent highly publicised case in New South Wales where this occurred. The rightful community outcry at this decision has had the positive effect of putting affirmative consent on the public agenda. I thank Ms Le Couteur for bringing forward this legislation.

As well as having the benefit of recognising common victim behaviour during assault, a “yes means yes” model encourages healthier and more positive communication about sexual boundaries between partners. Constant communication should be encouraged so that no participant feels that their boundaries were violated or are generally uncomfortable about the experience. Affirmative consent acknowledges that sexual relationships should be a mutually enjoyable experience. Sex should not be viewed as an act that person A does to person B; rather, it is an act that person A and person B mutually engage in and enjoy.

The affirmative consent model would be a positive step forward in our legislation. It more adequately addresses community expectations and understanding. It makes sense to define something as what it is, not what it is not, and consent is no different.

Changing the law will not completely stop sexual violence and rape culture, but it will make it easier for survivors to come forward and it will prevent situations like the Lazarus case from occurring again. “Yes means yes” is fundamentally a healthier and more respectful understanding of what consent should be. It should be the legal definition as well.

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