More robust standards of consent are being introduced in New South Wales, Australian Capital Territory, and Victorian sexual assault law. This has overwhelmingly been accepted as a positive and progressive move, with a few of the usual misanthropes claiming that getting consent for sex will ‘kill the mood’. I absolutely disagree with that. But I do have some serious concerns about affirmative consent being enshrined in law.
But wait – isn’t affirmative consent a good thing?
New affirmative consent laws mean a person must take positive steps to make sure the other person is consenting to sex. Currently, a person could argue they had a reasonable belief in consent, without actually taking any steps to confirm this.
You might think this surely sounds like a good change? Yes – as a social and educational standard for consent, I agree. Let’s be honest, making sure someone wants to have sex with you is the absolute bare minimum for sex. I also think you should make sure your partner feels safe and comfortable to express their desires, and that sex feels good and is pleasurable for them too.
However, as a queer person, a sexual violence researcher, and someone who wants to see prisons abolished, I’m uneasy about this becoming a legal standard with criminal consequences.
So, what are the problems?
Firstly, it’s unclear whether the federal government truly understands sexual consent. You might remember the now infamous ‘milkshake consent’ video. The federal government released it last year as part of their Respect Matters campaign for high school students. The video used a cringeworthy storyline and confusing metaphors to try and explain consent. It was quickly pulled after young people said it made consent more confusing and sexual assault campaigners said it trivialised sexual violence.
We’ve only just had commitment from education ministers that sexual consent education will be made mandatory in all Australian schools from 2023. It seems like we are doing things the wrong way around. The least we can do is get the education right and in place before we begin criminalising behaviour.
Secondly, as a queer person, I’m suspicious of any move by the government to regulate the way we have sex. LGBTIQ+ people have a long history of fighting against the criminalisation and over-regulation of sex and sexuality in Australia. Homosexuality was not fully decriminalised until 1997 and the gay panic defence was still in use in South Australia up until 2020. It’s still a recent memory for many people who have had traumatic experiences under Australian law, simply because of their sexuality.
While these laws are framed as ‘gender-neutral’, it is not clear to me how affirmative consent laws will be applied to LGBTIQ+ people. The fact is we largely understand sexual assault as being perpetrated by heterosexual men against women. We have yet to grapple with the dynamics of sexual violence in LGBTIQ+ contexts.
LGBTIQ+ communities also have wonderfully diverse ways of engaging in sex. Many subcultures and spaces have nuanced methods of sexual communication. For example, gay saunas and sex-on-premises venues rely on a subcultural set of codes. Sexual interest is communicated through looks and touch, often with little to no verbalisation. A hand on someone’s butt might be a way to communicate sexual interest. Flicking someone’s hand away is a way of saying you aren’t interested. It’s unclear whether these practices would legally count as ‘taking steps to ascertain consent’. The last thing I want is for diverse LGBTIQ+ sexualities to be policed again because sexual assault law makers have failed to consider them.
My final point is that locking people up doesn’t work. Over the last 40+ years we have seen several law reforms strengthening the legal system’s ability to punish perpetrators of sexual and domestic violence. Yet these problems remain pervasive.
Instead, we have seen an alarming trend towards mass incarceration. Our prisoner rate has more than tripled since the 1980s. The law is not applied equally. Those who end up in prison are more likely to be Aboriginal or Torres Strait Islander, from disadvantaged communities, and to have a mental illness or cognitive disability. Domestic violence reforms have also led to more Indigenous women being imprisoned than protected, as they are often misidentified by police as the perpetrators. The system reinforces racialised, ableist and sexist ideas of who can be a victim and who is likely to be a perpetrator.
Changing the law is not the answer
We must stop using the criminal justice system to respond to gendered and domestic violence when it further entrenches inequality. Similar arguments are currently being made against the criminalisation of coercive control. Communities targeted by the police are worried these laws will lead to further incarceration and do little to address gendered violence.
I acknowledge that sexual assault advocates have fought for affirmative consent laws to improve the way the legal system responds to sexual assault. However, in the wise words of Audre Lorde, ‘the master’s tools will never dismantle the master’s house’. Locking more people up won’t reduce sexual violence. Changing legal standards of consent is unlikely to change the ways people actually negotiate sex in practice. Let’s continue to focus on education, prevention, and developing alternative forms of justice instead of turning to the law and outdated carceral responses yet again.