Content Warning: This article discusses sexual assault and rape culture.
You may have started hearing the term “affirmative consent” recently, after the New South Wales government was the first in Australia to introduce new affirmative consent laws on June 1st this year, with Victoria and the ACT following suit not long after.
But what is affirmative consent, and why does it need to be a part of our laws?
What is affirmative consent?
Affirmative consent is a model of consent whereby people engaging in sexual activity together must take active steps to establish that consent has been given. The law defines consent as a free and voluntary agreement at the time of the act.
Under the affirmative consent model, a clear, congruent yes is needed to establish consent. In Victoria, actions that constitute a clear yes include (but aren't limited to) verbally agreeing in response to being asked, as well as gestures such as a nod or reciprocating a move.
The Victorian government has asserted that it is everyone's responsibility to take steps to have a reasonable belief that they have a clear an enthusiastic go-ahead before engaging in sexual acts.
“Victorians have made it clear there’s no room for victim-blaming and outdated attitudes around sexual violence – these new affirmative consent laws will ensure our justice system keeps up with those expectations.”
Jaclyn Symes, Attorney-General
This means that:
“No means no” is not enough.
It is likely that when you went through school, your sex education was either completely non-existent, you were taught abstinence only, or you were made to look at pictures of a range of STIs and got to put a condom on a banana in a clinical, or comical, manner that didn’t at all translate to real life.
It is also likely that you were taught that when it comes to sexual consent, it is important to respect when people say no. This is the “no means no” model of consent.
Frankly speaking, the no means no model of consent is deeply problematic. In reality, it is not enough to assume that you have consent unless you are told “no”.
A person who is intoxicated cannot say no. A person who is unconscious or asleep cannot say no. A person who is terrified or in shock very often cannot say no.
When someone is in a situation where they are uncomfortable or afraid, it is not always possible to say no. This is due to the freeze and/or fawn responses, two of our body’s natural responses to stress or danger.
The absence of a no is not a yes. Silence is not a yes. Nervous laughter is not a yes. “Maybe”, “maybe later”, “I’m not sure” do not mean yes. “Yes” accompanied by uncomfortable body language, such as pulling away, is still not a yes.
Under the affirmative consent model, only a clear “yes” that has been given freely and voluntarily means that you have consent. And this is a minimum requirement. Even if a yes has been established, belief in consent has to be reasonable given all of the circumstances.
This means that even if someone consented initially, if they then show signs of no longer wanting to engage, or no longer being able to consent, such as pushing the other person away, or becoming incoherent, then belief in their consent is no longer reasonable. Practising affirmative consent is an ongoing process that requires people to respect any cues that suggest a partner wants to stop.
Particularly in a society where it is often considered rude to turn people down, there needs to be a concerted effort to make saying no feel safe in sexual situations. This involves actively checking for consent, not making any assumptions about what a sexual partner might want, and being grateful when someone tells you no.
Consent must be explicitly communicated
for every act.
Let’s say you are on a date with someone, they’ve just come back to your place and you are lying on your bed together. You do the right thing and check for consent by asking “can I kiss you?”. Your date says yes, and you kiss for a while before placing your hand underneath your date’s shirt. Your date might not say no to this, but this doesn’t mean that you have their consent. Unless they do or say something that suggests they're into it, like taking their shirt off, or leaning in closer, then it's not reasonable to believe they've consented. Your date consented to kissing - this does not mean that they have consented to any other acts.
When it comes to consent, it's important to check in with your partner about each individual act, creating space for them to say no if there's anything they don't want to do. What this means is that it was your responsibility to ask “can I put my hand under your shirt?” before assuming that was okay, or at the very least pause and check their reaction to make sure they're comfortable. Any surprise or hesitation, such as clamping up or pulling away, suggests discomfort and should prompt you to pause and check in verbally.
You also need to check for consent at the time of each act. So if you change location, or if some time passes (for example if one of you has a toilet break), it's not okay to simply assume the person wants to pick up where you left off, or is still up for what they expressed interest in earlier.
All of this might seem like a lot to remember, but chances are you're already doing a lot of this. Overall, it's just about being considerate of the other person and taking care to consistently check that they are comfortable with anything you're doing.
If you want to know more, you can check out our guide on How To Check For Consent.
Why are affirmative consent laws so important?
No means no assumes consent as being granted unless otherwise specified. It places all of the responsibility on one person to say no, and none of the responsibility on the other person/people involved to check in and establish whether or not consent is present.
At best, the no means no model leads to anxiety provoking moments of not being sure whether your sexual partner is enjoying themselves. At worst, it leads to people being sexually assaulted, their silence being either misinterpreted as consent, or deliberately used against them.
Tragically, countless cases of rape have been dismissed in court, due to claims that the victim-survivor of the sexual assault did not say no.
The change in the laws means that the focus will no longer be placed on whether or not a sexual assault victim-survivor was able to say no during an incredibly traumatic event. Instead, perpetrators will have to prove that they took active steps to establish consent at the time of the sexual act or acts.
A person cannot be considered as having consented unless they gave a clear go-ahead. This will lead to fairer legal outcomes for victim-survivors, whose gruelling legal proceedings often have a re-traumatising effect, which is detrimental to their mental health.
On top of this, the change in the law is important beyond the context of criminal prosecutions and legal proceedings. The introduction of affirmative consent laws is a huge step towards developing a consent culture within Australia. They make it clear that everyone has a responsibility to check for consent.
“This new standard of consent in Victoria shifts the focus away from the victim and towards the accused and what actions they took to confirm consent.”
Ros Spence, Minister for the Prevention of Family Violence
The new laws make individuals accountable to check for consent instead of assuming, which will lead to a better understanding of consent as an active conversation between the people involved in sex.
Having clearer laws will help to drive a change in behaviour, as they prompt people to recognise the importance of asking for consent. These new laws are a first step towards a culture where consent is actively practised, where people know how to recognise and hear a 'no' in a way that makes others feel safe to express one. They're a step towards more respect for one-another.
More education is needed.
Think back again to the sex education that you received in school or as a young person. Think about the messages about consent that you may have internalised throughout your life, by watching TV shows, reading books, listening to the news.
How often have you actually seen affirmative consent modelled? How often do you see characters actively check for consent before engaging in sex?
More education is needed in order to equip individuals in our society with the tools to practise affirmative consent. We need to ensure everyone fully understands what consent really looks like and how to put it into practice.
We all need to know what to ask and how to ask it. If we really want to change people's behaviour, we need to give them the strategies to do so.
Sexual assault and harassment pervades Australian schools and workplaces, causing harm to so many individuals. You only need to look at the news to recognise this widespread societal problem. If we want to reduce the instances of sexual harm, people need better education.
Schools need to invest in training for teachers so that they can help students better understand consent. Parents need to take the time to re-educate themselves on what consent should look like today, so that they can pass this knowledge onto their children. Companies and other organisations need to provide training to staff so that they know how to practise consent in a way that is safe, enjoyable, and lawful.
Let's Talk About X offers training in consent education and LGBTIQA+ inclusion for schools and workplaces.
Frank discussions. Meaningful change.
If you need support, you can contact 1800 RESPECT or Blue Knot Foundation.