In 2007 section 61HA was introduced into the Crimes Act, which defined consent in line with community standards for sexual behaviour. At the time, this was a step forward. Over time, it’s become obvious it’s not enough and the section doesn’t achieve the outcomes it set out to achieve. In 2018, given a range of social and community-based factors, consent to sexual activity must be explicitly defined and more than an internal state of mind.
Consent has to be an active, affirmative permission given by one person to another, which must be communicated (either through words or other conduct) from the person giving consent to the one receiving it. The law in Victoria and Tasmania already reflect these concepts. At the moment in NSW, the lack of a communicated ‘no’ is as good as consent.
As I worked on the submission, I kept asking myself, what would work better?
We all have the right to decide the type and kind of the sex we get into. All of us in any sexual situation must communicate clearly with respect for our partner/s to reach an agreement around consent before starting out.
The thing is, if I’m down to fuck someone, I’m going to be enthusiastically and affirmatively expressing that I want to fuck them, either through the words I say or my actions. It’s when I’m feeling shitty or awkward about a sexual situation and don’t want it to happen, when I find it difficult to give a firm, verbal ‘no’. I’ve not always felt safe in saying ‘no’, and I know I’m not the only one.
I’ve lost count of the times over the years when I’ve said ‘no’ or ‘not now’ or ‘I’m not feeling like it’ again and again, and the person I was with just kept trying. Some of the responses I’ve heard have been, ‘So, what’s changed in the last half-an-hour?’, ‘But you were down for it last time!’ or the aggressive ‘What the fuck? you crazy bitch!’ Or they just left and never spoke to me again. Or they kept trying until I froze, and submitted.
I doubt any of these people I’m talking about had any idea they crossed my boundaries and did not have my consent. Our society and our legal system are constructed in such a way that my lack of a ‘no’ that final time, signalled that I meant ‘yes’. That’s not a tacit consent to sexual activity. The ‘freeze response’ is a well-known way of dealing with and minimising the potential for sexual violence.
Times have changed since 2007, and today consent also extends to the how and why we consent to sexual acts, including the use of sexual precautions like condoms, contraceptives or PrEP. The law must recognise that consent is automatically withdrawn with the removal or tampering of any precautions, without the other person’s knowledge. This is more recently known as ‘stealthing’. The young gay man who enjoys chem sex with sexual precautions, is not consenting to also have sex without those precautions. Hooking up with someone who agrees to use a condom, but then covertly removes it during sex is sexual assault.
Changing your mind about things or leaving the situation completely is okay and your legal right. When consent is negotiated and given, it’s equally important to understand that as fast as it can be given, consent can also be withdrawn.
Another important issue is around a particular section of the Crimes Act which deals with false misrepresentations from a list of circumstances that automatically withdraws consent. It relates to a person’s failure to disclose their HIV-positive status.
Positive Life strongly believes that HIV transmission should not be criminalised and must be removed from the Crimes Act entirely. Criminalising the failure to disclose HIV status in consent laws discourages people from testing for HIV and continues to perpetuate the stigma associated with it. It also creates confusion in circumstances where a person is unaware of their HIV status.
Section 79 of the NSW Public Health Act 2010 already requires a person who knows they have HIV to take reasonable precautions against the onward transmission of HIV. These reasonable precautions may include using condoms, having an undetectable viral load, confirming the proper use of PrEP of their partner, etc.
Criminalisation is a huge step backwards in the strides our community has made towards reducing HIV stigma through the acceptance of mutual responsibility for our sexual health.
What would work better? If the law adopts an affirmative standard of consent, it can encourage and facilitate a broad community shift towards mutual responsibility around giving and getting consent for sex. These changes to the law must be supported with community education and changes to the criminal justice system. This is particularly important for people who are part of marginalised or intersectionally oppressed groups within NSW, such as people living with HIV, Aboriginal and/or Torres Strait Islander people, people from culturally and linguistically diverse cultures, people who identify as LGBTQIA+, sex workers, and people who inject drugs, among others.
We need to talk about how we hold other people in our lives accountable for their views and beliefs around sex and consent and ask ‘what would work better?’ especially when there’s an imbalance of power between partners, like age, language, negotiation skills or genders.
Hot sex happens when there’s connection, respect, chemistry and trust. We must start the conversation around consent together as a community and talk about ways in we can do better for ourselves and our lovers and partners.
 NSW Law Reform Commission, Consultation Paper 21, Consent in Relation to Sexual Offences, 60.