Silence is not consent: why the new NSW consent laws on sexual acts help us and relationships

23 JUNE 2022

Silence is not consent: why the new NSW consent laws on sexual acts help us and relationships

This month, new laws came into effect in NSW to increase transparency around the requirement to have consent from both parties when engaging in sexual acts.

The reforms under the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 have been described by some as “commonsense” and about “fundamental decency”, while others have critiqued these changes as taking a “crude, simplistic and one-size-fits-all” approach to consent practices.

 A Charles Sturt expert in the School of Psychology, Dr Rachel Hogg, says the new laws not only have the potential to reduce rates of sexual violence, but may also enhance the depth and intimacy of sexual relationships - suggesting that “consent can be sexy”.

What are the new consent laws?

The new laws require that an individual seeks explicit consent rather than assuming that the absence of resistance can be treated as a “yes”. There are three key features of the new laws:

  • Minimising the space for assumptions: The reforms significantly reduce the potential for assumptions to be relied upon, both interpersonally and legally, when engaging in sexual acts. This disrupts a long-held culture of implied consent that has created systemic social problems across a range of relational contexts.
  • Communication is key: Ongoing and mutual communication is a hallmark of the new Act. The Act speaks to the need for active rather than passive meaning-making when seeking to understand what your sexual partner is thinking, feeling, and is comfortable doing when engaging in sexual acts.
  • Consent is an incremental, ongoing process: The new Act adds weight to the notion that consent is not a ‘set-and-forget’ box to be ticked at the beginning of a sexual encounter. Consent must be obtained for each new sexual act and can be withdrawn during sex. In other words, “yes” does not mean “yes to everything”, and “yes” can become “no” during a sexual encounter.

Not only do the laws emphasise direct communication over assumption-making, the campaign that is being used to highlight the new laws is direct and specific about how to communicate with a sexual partner.

The relationship between communication, consent and intimacy

Some consider the emphasis on affirmative consent to be lacking in nuance and unnecessary, yet communication is one of three key ingredients of intimacy in relationships. The new consent laws help to set the stage for more explicit communication in romantic interactions across the spectrum from casual interactions to long-term relationships.

The new laws have the potential to not just reduce rates of sexual violence, but to enhance the depth and intimacy of sexual relationships and experiences. Why? Because affirmative consent requires communication, communication conveys respect, and respect and trust are key features of sexual intimacy and connection.

This is not to imply that sexual assault is simply a matter of miscommunication and more explicit consent-gaining practices will automatically eradicate violent, criminal behaviours often predicated on misogyny and an intentional use of force and exploitation.

Sexual assault is a pervasive issue steeped in disrespect and violence, with far-reaching social, psychological, and economic consequences. Making active communication a legal requirement of sexual intercourse is only one of a number of factors that may help in addressing this crime.

A recent survey found that nearly a third of Australian males aged 16 to 24 did not understand consent and held victim-blaming views about sexual violence, while young people reported that equality was important at work, but less so in the home, with 22 per cent of males endorsing the notion that they should be in control at home.

This, alongside the fact that 20 per cent of Australian women over 15 years of age have experienced sexual violence, suggests that a campaign that targets consent practices in young adults is clearly warranted.

Implications for women - what respect looks like in practice.

Affirmative consent laws have implications for women’s safety and their experiences of sexual intimacy and pleasure. While the laws do apply equally to males and females, women are eight times more likely than men to experience sexual assault by an intimate partner in Australia, with recent data indicating that 2.2 million women have experienced sexual assault.

Affirmative consent laws challenge patriarchal assumptions of ownership over women’s bodies and sexuality. The assumption that a woman’s desire for sex can be inferred from what she is wearing, what she is drinking, and her presumed willingness to engage in acts of intimacy while intoxicated, is directly challenged by the new consent laws. A right to ‘access’ a woman’s body can no longer be inferred given the way the new laws strip power from inference.

Clear sexual communication is possible

In non-normative sexual contexts, affirmative consent is already widely practiced. Many of those who engage in alternative sexual practices such as fetishes, or ‘swinging’ are well-versed in communicating explicitly and clearly with their sexual partners.

Clear verbal consent matters

Research evidence suggests that on the whole, most of us are not as good at interpreting what another person is thinking and feeling as we think we are, with miscommunication posited as a key factor in coercion and sexual violence.

Recent research indicates that 60 per cent of those who have been raped do not describe their experience as ‘rape’ but do refer to it as an act of ‘severe miscommunication’. While this may reflect a difficulty on a part of the victim to fully acknowledge the seriousness of what has occurred, it also speaks to the ambiguity that underpins the process of obtaining consent in intimate contexts and highlights the role of communication in preventing sexual violence.

The new laws may lead to better sex and better relationships

Clear verbal consent mandated by law removes ambiguity from sexual encounters and creates a framework in which consent is positioned as an active construct that cannot be inferred by the initiator of sexual intimacy, but instead must be confirmed by both parties as part of the encounter.

This clarity protects everyone – and creates opportunities for building intimacy through the respect that is fostered by active communication between individuals. 


Asking for consent can be sexy – and it has the potential to lead to better sex and better relationships, casual or long-term. 

It is not surprising that some see the new laws as cumbersome and awkward. Stopping to check in with a sexual partner to make sure they are consenting does not align with what we have traditionally considered to be spontaneous and romantic behaviour – and it is certainly not a model of intimacy that is depicted in most cinematic representations of sex. But communication can – and should be – sexy, particularly when it conveys respect for the other person.

The new consent laws may have far-reaching positive consequences, not just in legal terms, but for the intimacy and quality of sexual encounters and relationships. 

ENDS

EXAMPLE SCENARIOS BELOW:

How do the new laws apply to different types of sexual relationships?

It is important to note that these new legal requirements are applicable to all types of relationships and all forms of sexual engagement. How communication occurs around such consent may differ, however, from one context to the next, and there are particular concerns that are important to consider in certain situations. Below are a couple of scenarios where interpretation of the new laws might be considered:

In a long-term, loving relationship:

One criticism of the new laws is that they do not apply to long-term relationships where it is presumed unreasonable for someone to be accused of rape simply because they did not ask their partner before initiating sex. Routine sexual interactions and a well-established knowledge of one’s partner (and their sexual preferences), can make asking for consent feel unnecessary. This is a dangerous misconception; consent is not something a relationship outgrows over time. Sexual assault survivor, Maeve Sheridan, states: “Consent in a long-term relationship (yes, even marriage) is the same as consent with your latest Tinder date. It’s asking permission, checking in with your partner, and respectfully accepting “no” as an answer.”

An established relationship is no less deserving of respect than in any other context where sex may occur, though the mode and style of communication used to establish consent may vary between one-night stands and long-term relationships.

For example, it may be easier to draw upon gestures to establish consent in a long-term relationship given the high level of familiarity between partners. The bottom line is the same, however; sexual abuse and violence can occur in any relationship and consent is especially important in this context because the individuals we often treat with the least respect are those who are the most familiar to us.

Going home together after a night of drinking at a bar:

In this context, one particular aspect of the new laws warrants consideration; that is, whether your partner is in a position to give their consent. The new laws recognise situations where an individual is asleep, unconscious, or too intoxicated to give consent as a stop sign for legal sexual activity. Recklessness could be shown here, in legal terms, if sexual acts are performed despite signs of intoxication in one’s partner.

Engaging with a sexual partner for the second time:

In this situation, mixed signals must not be interpreted as a sign of consent, nor must prior consent be treated as the status quo moving forward. Women are often told they must avoid giving mixed signals. This places the onus on women to ensure what they communicate leaves their male partner in no doubt of how they feel and what they want.

In reality, women are often socialised to avoid conflict and may temper their rejection of sexual advances because of a fear of aggression or reprisal. As youth mentor, Max Radcliffe notes, the adage “no means no” has taught us to think that anything other than a hard no could be a yes. This is a risky assumption, especially in this context, as in an attempt to keep the peace, women may offer nuanced forms of rejection. The new laws mean it is not adequate to simply argue that there were mixed or confusing signals.

This is where the new consent laws protect all of us – if someone is looking to engage with the same partner a second time and receives an unclear response that doesn’t seem to be a yes, but isn’t clearly a no, the response is no.


Media Note:

To arrange interviews with Dr Rachel Hogg, contact Trease Clarke at Charles Sturt Media on mobile 0409 741 789 or news@csu.edu.au

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