TW: Sexual Assault
You can’t spell “sex” without “consent”.
Oh hang on, that’s not right.
You can’t have “sex” without “consent”.
There we go. You can’t have sex without consent, because non-consensual sex is rape. So what is this so-called “consent” and why can’t you get all hot and steamy without it?
Legally, consent is the “free and voluntary agreement” to a sexual act. There are three key parts to giving or obtaining consent: it has to be knowing, voluntary and active. This means that you have to know what you’re agreeing to before you can agree to it, no-one can hold you at knife-point and force you to agree, and you have to express your agreement with a resounding “Yes!”, “Fuck yeah!”, “Mmmhmm”, “Harder, baby, harder!” or any variation on the theme in order for it to count.
Consent is one of those things that you’d think is pretty black and white – “no” means “no”, and anything else means “screw me”, right? Not so much. To start with, you don’t actually have to say “no” to mean “no” – and it’s the meaning that matters, not the words. Phrases such as “not right now”, “I’m not really feeling it”, “I’d rather we wait” and “let’s just cuddle” all mean “no” too.
So does silence: if your partner isn’t making a sound then that means they’re not giving consent. You might be thinking: “Well, if they don’t actually say anything then I can’t really be blamed for not realising they don’t want to do it.” Sorry Friend, you can be. Remember, consent has to be active, which silence definitely isn’t. Consider this: why wouldn’t you be moaning with pleasure if you’re having the time of your life doing the good ole Thrusty-Thrust? There’s a couple of options:
A) You’re at your parents’ place and you’re trying to get some private time without them finding out.
B) You’re unconscious.
C) You’re asleep.
D) You’re not having fun.
If you’re getting it on with someone and they’re completely silent then you need to stop and check why. Are they unconscious? STOP WHAT YOU’RE DOING AND SEEK MEDICAL HELP! Are they asleep? STOP WHAT YOU’RE DOING AND PUT THEM TO BED! Not sure if they’re having fun? ASK! Consent can be super easy to get, and won’t kill the mood if you use some of these highly recommended phrases (best served with a gravelly sex-voice and suggestive eyebrow raising):
“Does that feel good?”
“I’ve always wanted to try [sexy sex thing], want to try with me?”
The thing with consent is that it has to be obtained every single time you have sex. Not only that, but it also has to be obtained every time the sexual situation escalates.
So, what if you’re getting hot and heavy with someone and they agree to come back to your room but then decide they don’t want to do anything more than play tongue-hockey? Sorry Friend, that’s all you’ve got consent for, and trying to make them do anything more than what they’ve consented to is assault. What if you’ve had sex with them heaps of times before but they seem not really into it right now? Again, no dice. No matter how many times you’ve done the Moan and Groan together, if they’re not in the mood then they’re not giving consent. What if you’re in the middle of the action and they suddenly say “let’s just go back to kissing”, “that hurts”, or “let’s stop”? Even though they consented to start with, they’ve now taken away that consent and you have to stop, not matter how much your genitals disagree.
Something else to be super careful of is that drunk and drugged-up people can’t give consent. So how drunk is drunk? There’s no hard and fast law, but a good rule of thumb is if they’d be too drunk to drive as a fully licenced driver, then they’re too drunk to give consent. I’m going to write that one more time: drunk people can’t give consent. “But that’s not fair – how come drunk people are still responsible for drink driving but they’re not responsible if they make the poor decision to sleep with someone?” is the common “oh-shit” response. The answer is: that right there is a false comparison. The equivalent poor decision in this scenario would be if you sexually assaulted someone whilst drunk. If you sexually assault someone when you’re drunk, then yes, you’re liable for your actions in the same way as drink-drivers are. If, on the other hand, a drunk person has sex with someone who is sober, the sober person has the advantage of clear-headed thought and therefore has power over the drunk person – and when there’s a power-imbalance like that in sex, it’s called rape.
Okay, so if you’re sober then don’t have sex with drunk people. Got it. But what if you’re a drunk person having sex with another drunk person? What happens then? This gets a bit trickier. If you’re both too drunk to give consent, then the person who initiated the escalation in sexual interaction is the one at fault (remember: you’re still liable for sexual assault when you’re drunk). So if you took your clothes off first, then you might be in a spot of trouble. But what if neither of you can remember? What if you both escalated it at the same time? What if there were numerous escalations initiated by both of you at different times? Well in that case there’s nothing much that the courts or anyone else can do. Essentially, if there’s any doubt in your mind about someone’s level of sobriety, don’t have sex with them – no matter if you yourself are sober or not. It’s the only way you can be certain you’re not committing a crime. Ask their name and find them on Tinder later.
To reiterate: make sure you always get consent from your partner, and make sure it’s knowing, active and voluntary. It doesn’t matter what kind of sex you’re into, what your sexual orientation is or how many sexual partners you like to have, the one thing that’s common to every positive sexual interaction is consent. It’s the sexiest c-word around.