Did I really consent to this?

You have hooked up with a guy on Scruff, Grindr, Squirt or whatever app you are using. He sent you his location and you are on your way. By driving to his address have you consented to have sex with him?

He has left the front door open for you and you walk in. You enter his bedroom and he is waiting naked on his bed. You undress as well. Have you consented to have sex with him, by walking into his bedroom and undressing?

You are a sub bottom and like dominant tops who abuse you. You have told him you like to be verbally abused and told how you useless you are. Instead he starts to push you around and punches you. As a sub bottom who likes to be abused, have you consented to this?

You have been drinking, he offers you more alcohol and you share some drugs, his is older than you are and seems on edge and tense. You feel unsure of yourself and intimidated. The alcohol and drugs are making you feel uneasy, but you feel there is nothing you can do. You have come to his place; the expectation is you will have sex. Have you consented to this?

Often, we make assumptions about consent. We may assume because a person has arrived at our place, or we have arrived at another person’s place we are consenting to sex. After all, if it wasn’t our intention, or his intention we wouldn’t have arranged a hook up. Yet we need to take care.

As I wrote in my earlier article about grievous bodily harm, in a time when the law is being applied strictly, we need to take particular care in the area of consent to sexual activity and be very clear about what we are and are not consenting to.

Under the Criminal Code in Western Australia consent must be freely and voluntarily given. Consent that is obtained by force, threat, intimidation, deceit or any fraudulent means is not freely and voluntarily given.[1] It is important to note that consent must be actively given. Because a man turns up at your place having arranged a hook up does not guarantee consent. Because the same man walks into your bedroom, again does not in itself, guarantee consent. Passive acquiescence or even a desire to participate in sexual activity is not enough, a person must actively consent to the sexual activity in some way.[2]

Why is this important? Because the act of submission to an act does not automatically imply free and voluntary consent.[3] This is particularly the case where there is a power difference such as between an older and younger man. Despite the fantasy of Daddy/son role playing we do need to make sure in such situations that consent is being freely and voluntarily given by the younger person rather than assuming because he submits to the role play he is consenting to it.

I am not implying we need a three-page contract to be signed, but perhaps we do need to pause before we get too far into our role play to make sure we have consent

The issue of drugs and alcohol can complicate the area of consent. If a person has had so much alcohol and or drugs there is reasonable doubt on their ability to give free and voluntary consent, then sexual activity is best avoided. Of course, this implies the other party in the sexual encounter is not so affected by alcohol and/or drugs they can make an assessment on the levels of intoxication of the other person. In a situation where it is PnP or sex in the context of meth and both parties are affected by drugs then determining consent can be problematic. It has been found where a person is temporarily incapacitated because of alcohol and/or drug use they do not have the capacity to consent.

What about HIV and consent? 

One of the things you cannot consent to is grievous bodily harm (GBH). This is important given the recent cases of GBH and HIV in Perth. The consent of an HIV negative person to engage in sex with an HIV positive person is not protection for the positive person if they do transmit the virus to the HIV negative person because the negative person cannot consent to GBH.

This means for a person whose viral load is not undetectable or who doesn’t know their viral load and is having challenges staying compliant with treatment would be wise to disclose their status to sexual partners given recent legal cases in Western Australia.

The situation is different for a person who is on treatment and whose viral load has been undetectable for a period of six months because recent medical and scientific research has demonstrated they cannot transmit the HIV virus to another person. 

It is understandable that a person, may not wish to disclose their status given the prejudice they experience. However, this leads into my third article on our mutual responsibility towards each other particularly in the area of discrimination and stigma towards those who are diagnosed with HIV.[4]

David Kernohan

[1] Criminal Code s.319

[2] R v Winchester [2014] 1 Od R 44 Fryberg, J

[3] Wagenaar [2000] WASCA 325

[4] I would like to thank Nathan Kearns who assisted with the legal research for this topic

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