The " Sexual Consent " Issue !

A lurid court case in which the issue of consent to sex was the pivotal issue of guilt or innocence has certainty brought this to public attention.  There is no universal protocol in place and the legal requirement differs state to state and in the Australian territories.   Sexual relations between a man and a woman is a delicate matter and if rape is claimed it usually becomes the task of a court to decide this consent issue.

Basically, Victoria and Tasmania have the clearest law on consent for sex.  They require " active consent ", meaning that there must be an active communication and it is not consent if they " do not say or do anything to communicate consent ".

In the case that sparked this controversy an eighteen year old woman visited a night club and encountered the son of the owner.  He offered to conduct her on a tour of the premises and when they were in an alley behind the club he proposed sex.  The woman told him she was a virgin and he persuaded her to adopt a position on hands and knees and had anal sex with her.  She claimed that at no time did she give consent.

After a retrial in 2017 the NSW District Court granted an acquittal on the grounds that the accused had a genuine and honest belief that this eighteen year old virgin was consenting, though " in her own mind " she was not.

Despite the clarity of those Victorian and Tasmanian law requirements this issue is far from settled.  It would be most unusual for a third party independent witness to be present to verify that verbal consent and so it becomes reliant on the honesty of the two people involved.  In crimes of passion honesty is usually missing.  It also raises the question of consent being given because of fear of violence if it is refused.

To be perfectly legal it seems necessary that two consenting people need to either verbally agree to sex by recording a message on their phones - or sign some sort of paper agreement to that effect. Either would certainly dull the romance  aspect of what had become a perfectly normal social custom in this day and age.

Now this particular case has broken new ground.  The young woman was interviewed on an ABC national programme in which her accused is portrayed as " getting away with a crime " .  It was further claimed that " in the court of public opinion he was viewed as scum ".  This seems to be a form of vilification that ignores the finding of a court.

Finding an acceptable protocol for sexual consent would be all the better if adopted on a national basis but that is reliant on the people concerned being rational and honest, and both characteristics are usually absent in the heat of passion.

What is probably merciful to the legal profession is the very few issues of consent that find their way into the courts, consistent with the amazing number of times that sex takes place in Australia.  It is usually amicably sorted out by the people involved, and perhaps wisely should be left that way !