The following article contains discussion of sexual and domestic violence.
This year the New South Wales Government announced, as part of its initiative to tackle sexual violence, that it is moving forward with a campaign to encourage active consent. Active or affirmative consent is not a new idea, but in recent years it has gained traction in the wake of US college campus rape allegations.
From a legal perspective, defining active consent can be tricky. The practical basis of the approach, however, is pretty simple: consent for each sexual encounter must be voluntary, affirmative, and unambiguous. In addition, consent must be free of coercion or impediment, and can be withdrawn at any time.
To put it more plainly: consent is the active presence of a 'yes', not the passive absence of a 'no'. Consent is something given and received; it cannot be assumed.
Understandably, many people find active consent threatening. It promotes a standard that has not always been followed (even by people who are willing participants in sexual activity). People don't like to think of themselves as potential rapists, so they recoil from anything that might threaten this sense of self. That leads to scaremongering from people like News Corp's Joe Hildebrand.
In July Hildebrand wrote an article mocking the NSW push for affirmative consent. His premise is that the government should not promote active consent because it's unnecessary and, potentially, dangerous ('Stalinesque' is the word used). Active consent, he insinuates, will tar innocent people as violent sex offenders, because they don't want to go through the onerous task of explicitly checking that their partner is okay with what's happening.
We are to believe that affirmative consent is overly burdensome and — in this new world order — anything short of a notarised legal document will become insufficient for proving consent. Seemingly, Hildebrand cannot imagine any of the myriad ways a person could explicitly provide consent without involving a JP.
All this nonsense is unnecessary, anyway, because apparently 'every decent person knows what rape is, and knows it is repugnant'. But does every decent person know what rape is?
"Rape may not always carry the overt markers of violence; that does not stop it being rape. It also does not make it any less devastating."
Hildebrand says identifying rape is obvious, but he paints a picture of consent as a bewildering and elusive concept. Here's the problem with that: if you cannot identify consent, you cannot identify rape.
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