Understanding Affirmative Sexual Consent
Victoria has recently enshrined affirmative sexual consent in law, which means that everyone now needs to ensure that they have consent before engaging in sexual activity, instead of assuming that consent is granted, or believing that the onus is on the other person to deny consent.
This is an excellent step for victim-survivors of sexual violence, and ensures that the burden of proving consent sits with the perpetrator of an alleged sexual offence, instead of the victim.
Affirmative consent laws may feel confusing for many, though they should really just enshrine in law what responsible adults have been practicing anyway.
Relying on someone to say ‘no’ to sex is problematic for a few reasons.
“No means no” is never enough.
No is a difficult word for most of us to say. Consider the last time a friend asked you to do something you didn’t want to do. Did you say a clear, direct, and simple no, or did you engage in a social white lie about being busy? Did your friend push you to change your mind?
Imagine how much more difficult it would be to say no when you are more vulnerable (e.g., possibly unclothed), when you have commenced the initial stages of the activity you are saying no to, when the person you are saying no to might become angry, or when you carry the weight of cultural expectation that once you say an initial yes, you have to keep saying yes.
If we boil consent down to the simple phrase “no means no,” we return responsibility for stopping assault to victims.
Many people with a history of sexual assault report that they did not say no at the time because they were terrified, because they froze, because they wanted to be polite, or because they were intoxicated and unable to do so.
Instead of "no," I much prefer an emphasis on the word “yes.” Seeking and explicitly waiting for a yes at each stage of a sexual encounter ensures shared responsibility for all partners. It allows all parties, with varying levels of power and privilege, to consent. Allowing for sexual activity to take place only once an explicit yes has been received helps mitigate the impact of the freeze response.
For those who feel confused about what affirmative sexual consent may look like, I provide seven simple steps.
Ask the questions verbally the first time you engage in sexual activity with someone or touch someone.
The main questions at this stage involve determining whether someone is comfortable with you touching them (this is also important for non-sexual contact—not everyone wants to be hugged) and how much contact they desire (someone may be okay with kissing, but not with having their clothes taken off). Some simple ways of asking these questions include:
“I was wondering if I can kiss you?”
“Would you feel comfortable with a hug?”
“Are you OK with this?”
“May I…?”
Remember that a no can be a blanket no, or a “no, not now.” An “I’m not sure” is a no. Seek an enthusiastic yes (whether verbally, or through action) before proceeding.
2. Ask at each stage of a sexual act.
A simple rule of thumb involves seeking consent each time a new activity is introduced or a usually-clothed body part is exposed or touched (e.g., it is often OK to touch someone’s forearm or hand while kissing them without stopping to ask for consent, but not OK to touch their breasts or penis/vulva without asking, or ensuring that non-verbal consent has been received).
3. Remain attuned to non-verbal body signals. If in doubt, stop and ask.
Sex is about pleasure—if your partner appears to be withdrawn, frozen, distracted, not overly responsive, disengaged, or if you notice that they are pulling away, just STOP. It might be helpful to reflect to your partner what you noticed at this point and to check on their responses. A script for this might be, “Hey, I stopped kissing you because I noticed that you have been very quiet and I felt like you pushed me away—how are you feeling? Are you OK with this?”
4. Remember that consent can be withdrawn at any stage.
Sometimes people start feeling uncomfortable during a sexual activity or experience pain, shyness, or discomfort. I always encourage people to stop at this point in time instead of pushing through—save the stoicism for a dental clean, and remember that sex is about pleasure.
5. Remember that consent needs to be provided for each sexual encounter with the same person.
The conversation is likely to be shorter and less detailed over time once comfort, safety, and relational sexual norms have been established. But in more established relationships, people should still seek consent either non-verbally, by being attuned to their partner’s responses and interest, or even verbally (think, “Are you up for having sex?”).
A no at any stage is an immediate signal to stop, regardless of any activities that may have been consented to previously.
6. Remember that consent needs to be provided for each new sexual act within an established relationship.
That threesome you want to have?
It needs to be discussed, negotiated, and planned before occurring—ideally at a time when you are both sober.
It is especially important for consent to be sought for sexual acts that involve the other person’s body (i.e., you probably don’t need to seek consent before pulling out your new vibrator during a partnered sex session, but you do need to ask before using it on your partner) or if sexual acts involve the more unusual or kinky (note: nothing wrong with kink at all, it is just important to consider that everyone will have different levels of comfort with various activities).
7. Remember that someone can’t consent to sex when asleep or affected by a substance.
A generally good principle, though this can sometimes be a bit difficult to assess and navigate as there will likely be times when one or both partners are intoxicated and want sex.
A good rule of thumb is, if someone is unconscious, non-responsive, or cannot walk, stand, or talk clearly, they cannot consent, even if they have previously consented to sex.
If they can still enthusiastically participate and communicate, you are good to go (though I still usually recommend that people wait for all parties to not be too intoxicated before having sexual contact for the first time, to ensure that consent and interest hold).