What is ‘sexual consent’?

In a recent court case, two men and three teenage males living in Maningrida (a remote Indigenous community) stood accused of raping an 11-year-old boy. In delivering his sentence, Northern Territory Supreme Court judge Trevor Riley was quoted as saying that the boys’ actions were “not the same as rape, because in relation to that offence there is no issue as to consent”.

Riley’s words echo those of District Court judge Sarah Bradley. In another recent case, Bradley did not record convictions against any of the six young men accused of gang-raping a 10-year-old girl in the Indigenous community of Aurukun. This was because Bradley considered the boys’ actions to constitute a form of “childish experimentation”. Bradley’s views were echoed by crown prosecutor Steve Carter, who argued that the girl actually engaged in “consensual sex”.

In the media, we have seen numerous Indigenous men and women speaking out against these acts of sexual violence. This media coverage is important in that it helps combat the racist and still pervasive stereotype of Indigenous people as inherently sadistic and careless (and therefore deserving of white control).

However, the aforementioned court cases are worrying in that they suggest there is still uncertainty in the broader Australian community about what “consent” actually entails. In the following article, I will not attempt to define this term per se. I will, though, suggest ways that the issue of consent - namely consenting to sex, which I will call “sexual consent” - can be approached or understood. These ways of understanding sexual consent will be useful in helping us to detect and work towards eliminating sexual violence in all its forms.

First, though, I will provide a brief overview of how sexual consent has already been conceptualised. There has been a long-standing view that consenting to sex simply means saying “yes” or “no” to a particular sexual encounter. However, this approach has been challenged in recent decades by numerous feminists. These feminists have argued that the “yes/no” definition of sexual consent glosses over a range of factors that may help make an individual (or individuals) powerless and/or vulnerable in a sexual encounter. These factors include the use of force (physical, emotional) and coercion upon the individual(s) by the other sexual partner(s).

In a recent article published in On Line Opinion, Caroline Norma put this argument most forcefully when she wrote that “feminists now … have to talk to each other using the name of our own gynocide: ‘consent’”.

I will not argue that sexual consent is equivalent to gynocide or rape. However, I will concur with the feminist argument that sexual consent is not straightforward or easily identifiable. It is not as simple as saying “yes” or “no” to sex, or “offering to perform sexual acts” for a particular individual or individuals (as reportedly happened in the Aurukun case). Rather, sexual consent is highly contingent upon the power relations that exist between sexual partners.

How, then, can sexual consent be measured? How can we determine whether or not an individual has “consented” to sexual intercourse? “Yes/no” responses are not unimportant, but they are only a small part of the story.

We need to consider how an individual feels about the individual/s they are engaging in sexual activity with: is there a mutual attraction and sexual arousal, or at least respect between the partners? We need to consider whether pressure or coercion is applied by a sexual partner (or partners) against another sexual partner. We need also to identify any other ways in which one sexual partner may be more vulnerable or powerless than the other(s). For example: is one partner incapacitated or overtly affected by alcohol or drugs?

(In writing the last line, I am aware that one of the alleged attackers in the Maningrida case had reportedly been smoking cannabis around the time the attack took place. However, as many others have argued, substance use should not be seen as a valid excuse for committing acts of violence, including sexual violence.)

So, with this in mind, we want to question where or how sexual consent really took place in the Maningrida case. Can we genuinely say that a 10-year-old boy who was “bound with shoelaces and drugged” before being “penetrated” and “fondled” by five older males really “consented” to this treatment? And in the Arunkun case: Did an 11-year-old girl “consent” to being attacked by six older males whom she reportedly came to fear?

In recent decades, there has been a major shift away from trivialising or simply dismissing acts of sexual violence. We must not reverse this shift. Being able to identify what “sexual consent” entails will help us determine whether an individual genuinely agreed to participate in a sexual encounter, or whether they are actually the victims of sexual abuse.