The analysis of consent has been well developed in developmental psychology and political psychoanalysis for so many years.

Young children (preoperational stage) use an intuitive rather than logical approach symbols forms. Their concept of knowledge is largely egocentric and imaginative, confusing fantasy with reality (e.g., assigning emotional states to objects).

At the older, (operational level), children use a more logical approach to symbolic presentations and decenter their notion of consciousness. At this stage they are capable of what is described as "simple consent" where particular acts, but not consequences, can be given. An age-based method would suggest that in the Maningrida and Arunkun where at this stage. Simple consent really is at the level of "I do/don't want an ice cream".

At the level of young adults, formal operations are possible. Only at this stage of thinking can a person think abstractly, reason logically and deductively. They are capable at this point to understand values, moral ambiguities and so forth. If one is looking for a defining point where sexual consent is possible, then this is it.
It is this point that "informed consent" can be reached, where a person is capable of adult reasoning, is in control of their senses, and is able to calculate the outcomes of their decision.

Contrary to the author's claim, consent is not contingent on power relations between partners - that is a political issue and should be treated as such (e.g., to counter "Hobson's Choice" type arguments of "free choice"). The only point where power does play a role is in the psycho-political level where consent is expressed, but not internally given (due to fear, peer pressure etc). In that regard, power does play a role; but it is not a contingent role.

Rather contingency is a matter of cognitive development. No person without the ability to engage is consent is capable of doing so regardless of the power accrued, and no person with that ability should deny themselves that responsibility.

Having sex with someone below the age of consent is not legal, and the boys and men involved in having sex with an 11 year old boy and a 10 year old girl should certainly go for that, and be punished with the full weight of the law

Whether it was rape is another matter.

Calling it gynocide is ludicrous.

It may not be too far away when all sex acts have to be videotaped and documents signed by the woman before sex occurs.

“The survey found that four in ten of the survey's rape victims, and one in three victims of attempted rape, chose to have intercourse with their so-called attacker again”

http://www.iwf.org/news/show/19076.html

This was the case some years ago in a US university, where alcohol was a major factor in the so called rapes, and a similar situation could also occur in this country, where the greatest rates of binge drinking amongst teenagers in Australia is now occurring amongst teenage girls. If they had sex when they were drunk, then they also could claim afterwards that they had been rapped.

So having all sex acts videotaped and the tapes kept under lock and key with a layer may not be that ludicrous, but simply taking precautions, similar to having safe sex with contraceptives.

In my own research I have spoken to young people (16 years and over, thus the legal age of consent) about their experiences of pressured and unwanted sex. Unfortunately, what I have found is that young women and men’s experiences of negotiating sex rarely reflect what is expected under the legal definition of sexual consent. In Victoria consent is defined as ‘free agreement’ (meaning that a person must not for example be under duress, be asleep or unconscious, or under the influence of drugs or alcohol). Moreover, a person does not have to have said ‘no’ or physically resisted in order to show that they are not consenting to sex. Rather, the law in Victoria has been reformed such that consent must have been actively given. Yet these aspects of the legal definition of ‘sexual consent’ are less commonly known by many young people. In my research, many young women in particular experienced pressure to have sex from a boyfriend. For some young women this unwanted sex was their first sexual experience. Yet many of these young women did not even realise that what had happened was sexual assault or that they were entitled to justice under the law. This reflects other research which has shown that much sexual assault goes unreported. Also concerning, is that some of the young men I spoke to were not aware of the active requirement of consent. These young men were of the view that a young women being quiet and unresponsive may just mean that she was shy, and it did not occur to them that it may be an indication of non-consent to what was happening. It is not just the law that we must focus upon when we consider the issue of sexual consent. Crucially, we must also inform young people about the law and engage them in discussions about what consent means in their everyday encounters.

Children under a specified chronological age are deemed not able to give consent to sex, whether they say yes or no, or even advance the offer. (This legal definition of consent may coincide roughly with a stage of cognitive development, but it is best not to think in terms of cognitive development because individuals develop at different rates, and some intellectual impaired may never reach a stage of consistent logical capacity. So it is much neater to think in terms of chronological age).

But beyond the legal age, how can anyone reckon the power relationships? If a person says yes - because the relationship depends on it, or because rewards are great, or because their inhibitions have been lowered by drink or drugs taken voluntarily, how can this be defined as rape? If they have been tricked into intoxication, psychologically threatened, scared witless of the consequences of saying no, tied up, beaten, then that is of course rape. The grey areas inbetween the clear instances are what need to be settled in ways that more clearly define appropriate and inappropriate behaviour.

A girl I loved once said to me "No" and I stopped. Some 50 years later I wonder whether she was hoping to be overruled, and, if I had been more insistent over her mild objection, we would probably have gone on to marriage. I would dearly like to be able to plumb her mind and wonder if she has regrets in having underestimated my timidity. I am not joking or trivialising these matters, just reflecting on the complexities and nuances of intimate relationships.

A simple phrase like "Give me a call sometime" has I beleive around 124 different meanings. Depending on context in which it is used, verbal emphasis and non verbal body language.

In actual fact verbal language comprises around

"Albert Mehrabian as quoted also by Pease found that the total impact of a message is about 7 percent verbal (words only) and 38 percent vocal (including tone of voice, inflection, and other sounds) and 55 percent non-verbal. One study also done in the United States showed that 93 percent of a message was transmitted by the speaker’s tone of voice and facial expressions. Only 7 percent of the person’s attitude was conveyed by words. Apparently, we express our emotions and attitudes more non-verbally than verbally (Adelman and Levine:1993)."

So we already run into communication problems, especially in law which relies heavily on the spoken/written word. Plus some people are assertive and others are submissive.

The second issue is that we are led to believe that girls mature much earlier than boys. Not only physically, but socially and psychologically as well.

So here is a conundrum, girls mature at least two years earlier than boys, yet the law treats them as if they are unable to give valid consent.

Fencepost,

I disagree with you on both the chronological age/cognitive capacity issue. You appear to confusing what 'is' the case with what 'ought' to be the case in a legal sense. Just because there is a particular law that currently exists does not imply that law is the right one for all people, for all time and has been the same in the past and will be the same in the future.

Whilst it may be 'neater' (and certainly more efficient) for a legal system to grant rights of informed consent at a particular age across all individuals, that is not necessarily the most morally correct solution. As you have correctly pointed out, individuals vary in their physical and cognitive development - and some never even reach the capacity of engaging in formal operations.

The best system, in terms of justice, would accord the rights and responsibility to "adults with adult reasoning" according to their cognitive ability and would vary according to the individual in question. Whilst the difficulty of testing this is far from beyond the capacity of psychologists (indeed, they have been doing it for several decades now), it would also require significant legal safeguards against corruption, it would be expensive and there is the danger of "false positives". Whether those costs are sufficiently minimal to according appropriate rights and responsibilities to young adults is, ultimately, something that they will decide.

Lev.
Rather than a hypothetical, perhaps you could go to a disco and see exactly what goes on. The girls will be dressed to the T, and their dress will be designed to attract maximum interest and attention. By at about 11 o’clock, most of the girls will be drunk (of their own accord), and many will be all over the boys (of their own accord).

But the next day, they can wake up hung over, and then think that they should not have done what had occurred, or even think that they have been rapped.

If the girl does claim rape, then the boy can go to jail for doing exactly what the girl had done. That is now the difference.

I have seen this situation occur with a fellow worker in a company I worked in. She claimed rape 3 days afterwards. No physical evidence was provided at the trial. A doctor’s report found no evidence of rape, but he went to jail for a number of years. It completely destroyed his career, and the last time I saw him he was riding around the streets on a push bike. It was all based on what she said only, with no physical evidence provided

Fencepost, thanks for you moving and personal post. I agree with your analysis. The lines in the sand keep shifting - relatively recently, women with intellectual disabilities were given hysterectomies. Now they marry and have children.

I also think, re your old girlfriend, that if you asked her she'd be as curious and ambivalent as you are. But she wouldn't have a clear answer, and more than you do. Life is tricky, after all.

Apowell,

Thank you for the informative post. Clearly, the notions of "free agreement" are essential. 'Under the influence', as your post indicates seems to mean at the same level of restraint as duress, asleep, unconscious etc. In other words, drug or inebriated where an agreement is not reasonable. As JamesH pointed out in addition "active consent", could certainly include a great deal of non-verbal gestures and actions which concurs that "quiet" and "shy" is actually a lack of consent.

HRS,

I think you must have missed the bit where I wrote: "No person without the ability to engage is consent is capable of doing so regardless of the power accrued, and no person with that ability should deny themselves that responsibility". I was referring to exactly the sort of situation that your post suggested (I'm not commenting on the specifics of the case however); a person who makes a bad sexual decision in hindsight should not cry wolf, as it were.

(As for nighclubs, I still go once in a blue moon and although sensual the company is civilised).

I guess overall we all seem to be in "furious agreement"; none reject the validity of consent in principle but recognise elements of it as complex. This is, of course, a far cry from rejecting it altogether as some have done.

Lev,
I would agree with what you have said. I also think there are 2 society type issues that are heavily impacting on the rape laws and also the age of consent.

One is that girls are being compelled or coerced by the media mainly (including magazines, films, TV shows etc) to have sex at a younger age. I understand the average age for a girl to have first sex in the US has dropped from about 19 in the 1970’s to about 15 now. If it is similar here, then that age cannot keep declining indefinitely.

The second issue is that males are being portrayed as an abuser, and there have been quite intensive advertising campaigns on TV and elsewhere (including schools) that do portray males as an abuser.

When the 2 issues are combined, then it is a very dangerous mixture, particularly for the males.

However instead of changing the laws, the issues should be addressed, and girls should not be coerced into having sex at such a young age, or in one night stands, and the boys should not be portrayed as an abuser.

There would have to be campaigns for more permanent relationships, and at an older age.

This would then involve more attention to what is coming from the media (mainly), and trying to improve the media, rather than changing the rape laws or consent laws.

Having an ABC children’s TV channel would be a good start in that area, as the programs could be better controlled.

"gestures and actions which concurs that "quiet" and "shy" is actually a lack of consent."

Lev on this point I have to disagree, in some legal matters by not objecting it is seen as consent, silent consent.

I have known people who have looked after the disabled, some carers themselves have been propositioned by their disabled cleints. Also I understand that it can be horrendous trying to keep the boys and girls separated and under supervision at all times, and even then they manage to sneak off with each other.

I have heard a lot of encouragement for women to say NO, and I don't have a problem with that, but what puzzles me is why are not women encouraged to say YES, when they want too? or perhaps more correctly ask for what they want.

Sadly there is far too much game playing and gay people I know of both genders tend too it seems to have a lot less trouble with that.

Whilst in theory the disabled and not mature enough to consent to sex, how then does one then deal with their sexual activity?

Psychologist Toby Green wrote about some women who see themselves as the key/power to male desire and are shocked when they realise that they are not the key to male desire.(that doesn't sound quite right, I have to find the article.)

Hi everyone

Our society is very contradictory when it comes to sex, and there is so much that could be discussed. We seem to be pairing an increasingly neurotic and litigious society, with the continuing omnipresence of sex and innuendo. We can't really sustain both at once!

I don't know much detail about what was said or done in the indiginous communities. But in the relatively privileged white communities, where the circumstances are quite different, I have begun to see a worrying neuroticism and overly punitive attitude towards children experimenting.

While it may make you squirm a bit, the reality is that children do experiment. I have heard of cases where suburban mothers have accused boys of about 6, of being abusers in the schoolyard. It seems like they just can't handle what goes on, in a mature way - the mothers, that is.

Again, I think the context in an indiginous community is quite different, but perhaps the magistrates or judges were railing against this idiocy we are seeing in the metropolitan areas.

There is an inherently innocent aspect to children that makes it different from an adult doing it. Not that children are always innocent all the time - but I don't think they should be tried just the same as adults.

For the indigenous communities it would be good to see an in-depth investigation of what happened - done by people outside the legal system, like researchers or social workers. The legal system is not designed to do the social work for us.

Cheers.

There are a few issues here: firstly, there are quite a number of young people in the community who are not aware that there is such a thing as an 'age of consent', there has been so much sex education and education about contraception, stranger danger for younger children etc, but it seems that the idea of an age of consent has either not been taught, or has not been taught strongly enough.

Another issue involves alcohol as a social lubricant, as has been mentioned both females and males get drunk and have sex. Being drunk is no longer a defence in most jurisdictions, as it once was in terms of being so drunk as to be unable to form the intent to commit an offence.

So perhaps the idea of alcohol and consent should be applied equally to both sexes, and not just used as a bottle to beat males around the head with:

That is, if a male has been drinking, and a female has sex with him, perhaps the female should be charged. If both have been drinking, then both should be charged. If both participants in a sexual act are under the age of consent, charge them both as well.

Otherwise we will continue the anomaly that exists in the sentencing of sexual predators: male teachers go away for yeas for having sex with students, female teachers get good behaviour bonds.

Let us have equality before the law.

I support the intentions of the new NSW legislation regarding consent.

Both (or more..) participants should be as convinced that the other participant(s) is/are consenting, and is able to give informed consent, that is, not impaired by alcohol, drugs, medical condition or psychiatric impairment or developmental disability.

Also, that both, or more, participants should be not influenced by fear, undue pressure or coercion, or in expectation of a favour or advantage, excepting where that favour or advantage is implicitly state and accepted by all parties, for instance in the sex trade.

The standard of being convinced should be the same as the standard of conviction in a criminal trial, that is, beyond reasonable doubt.

If there is any doubt whatsoever that informed consent is being freely given, then no sexual contact should take place.

It may mean that fewer people will get sex, but it should also mean that a fair number of people will not be sexually assaulted.

It's interesting that consent in this context seems to be treated much more seriously than in other area's.

Some time ago I was forced to accept changes in child residency arrangements which I believed to be unworkable and damaging. The solicitors involved were aware that I was "consenting" because of external factors rather than a belief that the changes were good or workable. The mediator was aware of this. I ensured that there was a note on the documents that went to the courts which made that clear.

It was a consent given under duress and the legal system was quite OK with that.

I find it interesting that someone who chooses to drink and then chooses to drive is held responsible for that choice if caught but in this situation another party is expected to make a determination regarding a persons ability to give consent and the liability seems to lie with that other party.

If it's true that an intoxicated male is held to be more responsible than an intoxicated female that says a lot about how far women still have to go to be treated as equals.

I think that there are complexities around consent within a monogamous marriage which are not easily summed up.

None of this is easy to deal with by legislation.

R0bert

Robert,

I don't know, but perhaps this issue of consent when drunk is based merely on the physical aspect? A man who is intoxicated to insensibility is simply not capable, no matter what he says in his drunken ardour, of the physical act of sex.(And very relieved some are the next morning, I should imagine!) Its kinda like trying to stuff marshmallows into a piggy-bank.

But due to a woman's physical arrangement the act is possible even if she is unconscious. So perhaps that was/is the basis behind this determination?

And yes. I agree completely on the issue that the sentencing of teachers who break the codes of morality has, in many cases, been treated unfairly.

What's really worrying about all this type of conversation is the extreme unliklihood that alleged victims will ever have enough access or awareness of 'the finer points' of law before or during or after the incident.

That they are never entitled to legal support as victims.

That there is no one 'on their side' to assist them to comprehend how their statements will be used and abused in court.

Add the complexity of age, disability, education etc.

One person's word against many, when even in cases of one person's word against another, where words provide the main evidence, the benefit of doubt must go to the accused (who does have legal support, and rights, and rights of appeal).

What is also worrying is with cases like those mentioned in the article, there was obviously no one present amongst the participants who thought to act, or acted to stop the behaviours. Why is that? Oh, I get it - it's because our law provides ample excuse for sickening acts of degradation performed by gangs. Or was it fun?

Romany, your point about the physical differences and the probable intent of the laws is valid but I have the impression that some believe that the laws are used for situations well beyond that. I've no first hand knowledge of the laws so I'm uncertain if that is a beat up or reality.

If it's a case of two intoxicated people making a decision that one later regrets and the other is then subject to criminal santion as a result it's a very large injustice.

Where there is no possibility of consent being given (passed out, under age etc) or where the consent is given on the basis of a reasonable fear of retalitory harm from not consenting then it's a massively different issue.

R0bert

Romany wrote:

"A man who is intoxicated to insensibility is simply not capable, no matter what he says in his drunken ardour, of the physical act of sex"

This implies that the sex is between a male and a female, what if the perpetrator of the act is male, and the act is homosexual, or even if girl on girl?

And no-one has said that a man, or woman, has to be drunk to the point of insensibility for consent not to be able to be freely given. I give another example: we don't let people drive with more than a certain amount of alcohol in their system. This is because brain function is impaired, and that is at .05 for an adult driver.

Lots of people can walk, dance and conduct a conversation at .1 or .15 without falling down. Does this mean that they are in a position to provide informed consent? Some are, some are not.

There can be further conditions: A person can say something like, whilst sober to a particular partner, : "lets get drunk and XXXX XXX XXXXXX XXX" then they both get drunk and have sex. The rules of the game are set and the game is ready to be played. However this consent is not given for others to joing in, unless this is also agreed beforehand.

So, it isn't simple. Just being drunk does not necessarily negate consent. I know of some women who feel they have to be drunk to enjoy sex, and want to be drunk and having sex.

However if someone takes advantage of someone's intoxication to initiate, then it is different.

Complicated, isn't it?