Tuesday, 16 March 2021

SEXUAL CONSENT - by Dr Tim Hawkes OAM


Dr Tim Hawkes OAM


INTRODUCTION 

Boarding schools have not been immune from criticism that they aren’t doing enough to educate students about sexual consent. Indeed, with boarding staff acting in loco parentis, it becomes even more imperative for staff to ensure the boarders in their care are well-informed in relation to matter of sexual consent.

However, it is not just information that is needed, it is motivation to do the right thing. It is the creation of a culture of respect. It is an understanding of our common humanity and what needs to be done to live a generative life characterised by respect for each other. These things are often best modelled than lectured on.

The genesis of the contemporary drive to improve sexual consent education was a petition started in February 2021, by Chanel Contos, an ex-student of a boarding school in Sydney. The petition went viral with thousands of alleged sexual assaults being described by respondents when they were at their respective schools. The resultant publicity has led to urgent remedial activity in many boarding school communities. 

History suggests this was not the first time sexual consent was diagnosed as a problem among young people. A previous Australian poll indicated that 55 percent of boys in their senior high-school years confessed they had a friend that had sexually assaulted someone. (1) In another study of Australian children, half of the girls and a third of boys aged 16 – 17-years said they had experienced unwanted sexual behaviour over the last year. (2)

It is clear that society continues to have a sexual consent problem among its youth.


THE CONSEQUENCES

The tragic reality is that many lives have been ruined because of predatory sexual behaviour. It is time for urgent remedial action. No boarding community that would want to call itself civilised can countenance the emergence of a culture of disrespect towards women, or a predatory sexual license among its students. 

Our boarders need to recognise that satisfying sexual pleasure without the full consent of the sexual partner is a serious crime. Under certain circumstances, it can result in jail and being placed on a sex offenders register. This can be an appalling experience for the offender, their family and their school.  

However, it can be even more appalling for the victim who may have to live with emotional scarring for life. Victims have been known to be so traumatised, they have found it difficult to form intimate relationships in the future. Many have suffered depression and engaging in acts of self-harm. 


THE LEGALITY

The legal definition of sex does not necessarily align with the definition of sexual activity. For a jury to decide whether sex took place, it generally needs the penis, finger or any other part of a person to be partially of fully inside another person’s vagina or anus. Sex is also deemed to have happened if oral sex was engaged in.

Those that are involved in kissing or fondling are not usually considered to have engaged in sex. They will usually be judged to have engaged in sexual touching or a sexual act. However, our boarders need to be careful. Although not classified as having sex, activities such as kissing and fondling, when uninvited and non-consensual, may be judged as sexual assault.

For this reason, any form of sexual activity should only be undertaken if it is transparently clear there has been consent. 

In judging the legality of sexual relationships between young people, the law typically takes into account three factors:

  • Consent. (Did the person agree to sex?)
  • Equality. (Is there a power imbalance between those having sex?)
  • Coercion. (Were threats of any kind used to obtain sex?)


CONSENT

The law has a difficult job in legislating sexual consent for children. On the one hand, the law wants to protect children from exploitation and harm. On the other hand, it wants to acknowledge children as sexual beings with sexual appetites and a natural curiosity about sex. These two goals do not always sit comfortably with each other.

In Australia, consent laws vary. Generally, the age of consent is fixed at 16 years, but in Tasmania and South Australia, it is set at 17 years. 

The age of consent is the age it is judged a person has the maturity needed say ‘no’ and to say ‘yes’ in an informed manner. It is also the age when it is recognised that most are able to navigate the risks in sexual activity so that it doesn’t harm themselves or their partner.

Our boarders need to recognise that consent to sexual activity in the past does not mean consent is given for sexual activity in the future. Another important fact to bear in mind is that silence is not ‘yes’. Consent needs to be clear and ambiguous, and it needs to be continually given as sexual activity moves into different levels of intimacy.

If a boarder engages in sexual activity when their partner is drunk or under the influence of drugs, they may be charged with sexual assault or some other related offence. Boarders need to recognise that anyone in a condition that renders good decision-making less likely, must be considered ‘off limits’ to sexual advances. Likewise, if they engage in sexual activity with a partner who was asleep or too drowsy to understand what was going on, may well be found to have engaged in criminal behaviour, as would a person who tricks a person into sexual activity.

Consent means agreement to. Indeed, in order to avoid any change of being found to be acting unlawfully, boarders should be encouraged to seek enthusiastic agreement to any sexual activity they are proposing. 

As things progress sexually, checks need to be made that the sexual activity is still wanted. Phrases such as, ‘Are you OK with this?’ and, ‘Is this good for you?’ need to used. It is important for boarders to know that a partner being silent is not a partner who is necessarily giving permission.

Body language is as important to note as much as verbal language. Squirming away, pushing away, arms and hands used to fend off advances, needs to be taken as clear signals of unwanted sexual activity. They are not to be seen as a challenge. They need to be seen as ‘no’. 

A tricky element to the consent issue is the right of partners to change their mind. This is important to recognise. When affection and trust develops, there will often be a signalling that a greater level of intimacy is now appropriate. 

However, care needs to be taken. The speed of arousal in some can be quicker than the speed of arousal in others. Therefore, it is important to advance the growth of sexual activity at the pace set by the slowest. 

When checking on consent, it’s often better to adopt an ‘opt in’ policy rather than an ‘opt out’ policy. In other words, it is safer to ask if it’s OK to go further, than to go further and then ask if it OK.

Our boarders must recognise that for intimacy to be mutually enjoyable, the needs, feelings and desires of each partner needs to be satisfied. When no effort is taken to accommodate a partner’s preferences, a person runs the risk of being judged to have engaged in non-consensual sex.

Sexual appetites vary. Personalities vary. Upbringings vary. It is also important to recognise that religions and cultures vary. These influences need to be acknowledged. For one person, sex might just be a bit of harmless fun. For the other person, it may threaten estrangement from their family, banishment from their community and a difficult repentance before their God.  

Respecting a person requires respecting their rights to determine what can happen to their body. Personal space needs to be respected. This includes when greeting and farewelling, when talking, when dancing and when kissing. 


EQUALITY

Equality is not just judged on age and on issues such as an overage person engaging in sexual activity with an underage person. It can also include sexual activity between people where there is a power imbalance such as a teacher and a student, a carer and the one they are caring for, and a coach and the person they are coaching. Any situation where a power imbalance is used to obtain sexual favours will likely to be seen as illegal. This includes sexual activity with someone who has a disability that prevents them from making appropriate choices about such activities.

Laws vary as to the age of consent. Some courts will consider a claim that a person ‘looked’ over the age of consent, but this cannot be relied on. 

Some courts will also tolerate sex between underage youth if consensual and if both were underage and not too young and that there was not too much of an age difference.  A person just over the age of consent engaging in sexual activity with one that is just under the age of consent may be deemed not to have committed a sexual crime. However, this is dangerous legal territory. If in any doubt about a person being an appropriate age, sexual activity should not be entertained.


COERSION  

The use of physical threats to obtain sex is transparently recognised by most as being coercion and unconscionable. Somewhat less well understood is the use of social and emotional coercion to engage in sexual activity. 

Our students need to recognise that the law may see the following sort of language as coercion and criminal:

  • ‘You would if you truly loved me.’
  • ‘Everyone else is doing it.’
  • ‘Don’t you want to make our relationship stronger?’
  • ‘You don’t want to be labelled “frigid” do you?’
  • ‘You’ll be bagged out for being a virgin if you don’t do it with me.’

An extreme example of coercion is rape. The exact definition of rape varies, but it usually requires there to have been penetrative sexual activity without consent. It is a serious crime that can lead to significant prison sentences. 

Aggravated rape is usually determined if the rape involved force, a weapon, leads to injury, was committed against a minor or involved a significant power imbalance. The penalties for aggravated rape are usually more severe than for rape.

Other sexual crimes include:

  • Sexual Act. Examples include sending ‘nudes’ (sexting) and exposing yourself.
  • Sexual Touching. Examples include ‘feeling up’ and caressing either under or over clothing.
  • Sexual Assault. An example would be engaging in sexual intercourse without consent.

Some sexual predators have used blackmail to get sex. Sometimes this can involve such activities as the threat to release intimate photos or nudes unless sex is given. This sort of behaviour will be seen to be a very serious crime, as could any form of bribery to gain sexual favours. 


THE ‘RED FLAGS’

There are absolutely no certainties whatsoever, but research suggests a number of ‘red flags’ exist that indicate non-consensual sex may be more likely. A boarder may be more at risk of failing to respect the notion of consent if they have the following attributes: 

  • A tendency to drink too much alcohol at parties.
  • A reputation for ‘cutting loose’ at parties.
  • Hanging with a group that’s heavily into casual sex.
  • A regular watcher of pornography.
  • From a family where respect for woman is not modelled.
  • A tendency to see the opposite sex as ‘fair game’ to be hunted.
  • A person with a history of multiple sexual partners.
  • Ignorance about what constitutes consent.
  • Having the common, ‘I want what I want when I want it” mentality.
  • The desire to be thought to have great sexual ability.

However, someone with none of the characteristics described above can still be guilty of demanding non-consensual sex, and someone with all the characteristics described above may never behave in this manner. Therefore, care is needed when making generalisations of this nature.


AN ISSUE FOR BOYS

Statistically, teenage boys are at a higher risk than girls of being charged with sexual assault due to engagement in non-consensual sex. 

Sometimes, they are charged with the offence immediately after the sexual event. At other times, they are charged with the offence later in life. Anyone that has failed to ensure the sex they engage in has always been consensual, is living with a legal bomb that can go off at any time. 

Quite properly, society is becoming more and more appalled by non-consensual sex and less and less willing to dismiss the matter as ‘boys being boys’.

Boys need to recognise that sex is not about conquest. A ‘yes’ given to sex needs to be arrived at without social, emotional and physical pressure. They also need to be aware that ‘no means no’. It doesn’t mean ‘maybe’. Neither does it mean the need to put more pressure on a partner to change the ‘no’ to a ‘yes’.

Having noted the above, predatory sexual behaviour by girls is not unknown. Some girls know just what to do in order to manipulate a partner into engaging in sexual activity.  


INFLUENCE OF PEERS

In the cold light of day, most recognise that exerting inappropriate pressure for sexual favours is wrong. However, this recognition can become diminished at events such as parties. Alcohol and other recreational drugs, the urging of peers, and the arousal caused by pornography or the sexual behaviour of others, can result in a sexual hunger that trumps sexual morality.

A factor in many cases of non-consensual sex is the influence of peers. A victim, in wanting to be thought well of, will sometimes tolerate unwanted sex. A perpetrator, in wanting to be accepted by peers, will sometimes partner in sex acts that are demeaning and predatory.

For this reason, our boarders need to recognise that choice of friends becomes important, as is cultivating the capacity to make your own choices when it comes to engaging in sex. As the saying goes:

Show me your friends

and I’ll tell you your future.


THE INFLUENCE OF PORNOGRAPHY

Advocating consent is not easy in the contemporary age where teens have almost unlimited access to pornography. Research varies, but estimates suggesting four out of five teenage boys watch pornography at least once a week and one teenage girl in five. 

Boys aged 14 – 17 years are the most frequent users of underage pornography. (3) In 2017, the Australian Institute of Family Studies reported that 44 % of 9 – 16-year-olds had watched sexual images in the last month. (4)

Much of the porn watched does not model consensual sex. It can encourage unhealthy fantasies associated with power and dominance. This can be carried over into real sexual relationships resulting in great harm to all parties. A mind saturated in pornography is a mind that can develop unrealistic expectations as to what is normal when having sex. Furthermore, a promiscuity can be encouraged which results is a growth of physical intimacy not matched by growth in social maturity.

Many sex criminals in our jails were big into pornography.


SEXTING AND REVENGE PORN

Some couples increase the sexual element of their relationship by sending ‘nudes’ to each other. It is interesting that engaging in sex, if consensual and of the legal age, is considered permissible by law; but filming sex and sending it to each other is not. The law is still catching up with modern times in some areas, and this is one of them. 

Currently, the law threatens to make criminals of the third of our teenage boarders – this being the proportion of Australian teens that have sent, received or distributed nudes.

Given the uncertainty of outcome from a legal perspective, it is as well not to engage in any form of sexting. A further reason is that when a photo or video is posted, it can remain in the digital world forever, and can re-emerge later in life with the potential to cause great embarrassment and harm.

Solution: We can’t do anything other than encourage our boarders not to engage in sexting. It’s just not worth the risk. Research varies, but about 80 percent of nudes are shown to people without proper consent. Boarders need to recognise that assurances of confidentiality should never be relied on. 


 

When an intimate relationship is dissolved, there can be significant anger and hurt. People tend not to make good decisions when angry or hurt. One thing some people go and do is to seek revenge by posting the nudes they have of their ex-partner. This is known as ‘revenge porn’.

Our boarders need to recognise that revenge porn is considered by most courts to be a form of sexual assault. In other words, it is considered non-consensual and illegal. 

A further thing to be very careful of is viewing some else’s ‘nudes’ and sending them on to friends. Indulging in this sort of behaviour, is not just the innocent sharing of pictures between ‘besties’ and mates. It’s illegal and could result in criminal charges. Our boarders must not be a party to sharing nudes.



SOME HOMESPUN ADVICE


There is much more that can be said about sexual consent. Included in this is homespun advice on matter such as the following.

In a situation where one of our boarders may feel unsafe, they can discus ‘escape’ techniques such as saying they need to go to the toilet, or that they think they’re going to be sick. Thereafter, encourage them to retreat to the protective company of trusted friends, phone for help, or using the SOS feature on their phone, or leave the venue and make their way safely back home. 

Advice might also be necessary about safe and responsible sex. Our boarders need to know something of the biology of sex before they engage in the physics of sex. There are a lot of mistruths out there such as not being able to contract an STI via oral sex, or not being able to get pregnant if you have sex standing up. Sex hygiene and contraception also needs to well understood.

Advice might also be needed on love and sex. As boarding staff, we need to recognise that teenage love is real and should not be dismissed as inconsequential or just ‘puppy love’. That said, it can be useful to gently share the reality that most people fall in love several times, with each occasion having the potential to bring great pleasure and pain. 

It might also be good to explore the notion that some feel it appropriate to have a right to sex if they, or their partner, say they are in love. Wrong. Being in love is not necessarily a green light for sex.

For a variety of reasons, some want to wait not just for love, but for the right time before they engage in sex. These wishes need to be respected. 

A real demonstration of love 

can be in the preparedness to wait 

rather than in a constantly voiced request for sex.



ACT WITH GRACE


Finally, being judged to have engaged in consensual sex is more likely if it is done with G.R.A.C.E.

  • Given. Sex that seeks to give rather than get is more likely to be consensual as well as mutually enjoyable.
  • Re-set. The boundaries set by any partner need to be able to be re-set at any time. Just because an activity was done in the past does not make agreement to that activity a given in the future.
  • Agreed. Consensual sex is sex that is agreed to. Furthermore, this agreement must be checked and re-checked.
  • Coercion-free. Manipulating a partner with emotional, social or physical blackmail, or by intimidation in any way, will generally be seen as breaking the law.
  • Educated. Knowing what makes for safe sex, free from the worry of pregnancy, sexually transmitted Infections (STIs) such as chlamydia, or blood borne diseases such as HIV, will decrease the chances of sex being described as irresponsible.


CONCLUSION 

One of the best ways to encourage our boarders to behave in relation to sexual consent is to get them to imagine what they would feel if a sexual partner was their daughter or son. Would they be happy for them to be treated in the way they were treating them? If not – they should then be encouraged to treat them better.

Boarders need to recognise that consent is about respecting the boundaries set by a partner. Most sexual assaults don’t happen by masked strangers in dark subways. Usually, it’s perpetrated by someone the victim knows.

Sex is a wonderful thing. However, if it is engaged in in a non-consensual way, it can lead to a life-time of mental and emotional scarring. It can also lead to prison. Therefore, our boarders need to be sure – as in absolutely sure - that any sexual activity engaged in by them is wanted, pleasurable for both parties and without harmful consequences.


If any boarder needs further help or advice on the matters raised, there are many they can go to for help including parents, boarding staff, doctors and counsellors at school. However, they may need to be reminded that any criminal matters should be reported to the Police.


There are many other help agencies that can assist including: 


There is nothing wrong with us

that can’t be corrected by that which is right with us.


Old saying


Dr Tim Hawkes


1

 Visontay, E. (2021) Viral petition reveals more than 500 alleged sexual assaults in Australian private schools. The Guardian. 19 February 2021. https://www.theguardian.com/australia-news/2021/feb/20/viral-petition-reveals-more-than-500-allegations-of-sexual-assault-in-australian-private-schools


Zhou, N. and Visontay, E (2021) Viral petition against student sexual assault a ‘wake-up’ call Sydney private school principals say. The Guardian. 22 Feb. 2021. https://www.theguardian.com/australia-news/2021/feb/22/viral-petition-against-student-sexual-assault-a-wake-up-call-sydney-private-school-principals-say


2

 Warren, D. and Swami, N. (2019) The Longitudinal Study of Australian Children. https://growingupinaustralia.gov.au/research-findings/annual-statistical-reports-2018/teenagers-and-sex


3

 Campo, M. (2016) Children and young people’s exposure to pornography. Child Family Community Australia. https://aifs.gov.au/cfca/2016/05/04/children-and-young-peoples-exposure-pornography


4

 Quadara, A. El-Murr, A. and Latham, J. (2017) The effects of pornography on children and young people. Australian Institute of Family Studies. https://aifs.gov.au/publications/effects-pornography-children-and-young-people-snapshot




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