Explainer: What is affirmative consent?

Affirmative consent will soon be required across the entire east coast of Australia, after new laws were introduced to the Queensland Government. 

Advocates have long been campaigning for the implementation of affirmative consent, which requires free and voluntary agreement before sexual activity can take place - and be considered consensual. 

“The current laws in Queensland are very archaic and arguably are not delivering safety and justice for victims or the broader community, with a 1.7 per cent conviction rate and only 13 per cent of victims trusting the system enough that they report,” says National Women’s Safety Alliance chairperson and executive officer of Queensland Sexual Assault Network, Angela Lynch. 

Where affirmative consent laws aren’t in place, the victim must have overtly said ‘no’ or actively fought off an offender to demonstrate non-consent. 

“There can always be unintended consequences with any change in the law and we will have to wait to see how the law is interpreted in practice but overall it’s a positive step,” Ms Lynch says. 

If passed, Tasmania, Victoria, New South Wales and the ACT will all require affirmative consent prior to sex, which also recognises stealthing - the non-consensual removal of a condom - as rape. 

But what does affirmative consent actually mean? Mamamia spoke to Kahon Law’s Rick Chahal about the current laws and how they’ll be applied. 

What is affirmative consent? 

Affirmative consent, in the context of law, refers to the explicit, informed, and voluntary agreement to participate in a sexual act, explains Chahal. 

“It is a proactive, continuous process and the individuals involved must express their willingness at every stage of the encounter. 

“Silence or lack of resistance cannot be considered as affirmative consent. It is about communication, respect and mutual consent, emphasising that 'yes means yes'.

How does someone obtain affirmative consent?

The best way to start is to ask. “Obtaining affirmative consent can be accomplished by explicitly asking for permission before any sexual activity, ensuring that both parties are comfortable proceeding,” says Chahal. 

The key is open and clear communication, with each party free to express their wishes and boundaries without fear. 

“It's important to understand that consent should be ongoing and can be withdrawn at any time, regardless of previous consent.”

What are the key elements of the affirmative consent model? 

One of the most significant parts of the model is that consent is required for each sexual act - getting the green light for sex won’t cut it. In other words, each party is allowed to change their mind at any stage of the process. 

“This mode underscores the importance of continuous consent, meaning consent must be obtained for each separate act in a sexual encounter,” says Chahal. 

“That consent given at one time cannot be presumed to apply to future acts. It allows for the withdrawal of consent at any point, with the understanding that consent for one act does not necessarily mean consent for all acts.”

More than a one-time event.

Under the affirmative consent model, consent is continuously required throughout the entirety of any intimate encounter. 

“The reason for this lies in each individual's inherent right to autonomy over their own body and actions,” says Chahal. 

“This means that even if consent is given at one point, it can be withdrawn at any moment if a person no longer feels comfortable.”

What is 'explicit' consent?

“When we speak of explicit consent, it means it must be a clear, unambiguous, and conscious decision to engage in sexual activity,” says Chahal. 

Body language or assumptions aren’t sufficient under the affirmative consent model.

“It could be as straightforward as a spoken agreement or a nod of the head, but it must be certain and unequivocal,” says Chahal. 

“This ensures that all parties involved are on the same page and there's no room for misunderstanding or misinterpretation.”

Can consent can be withdrawn?

A key part of the affirmative consent model is that consent can be withdrawn at any point, even after it’s initially given. 

“This can be done verbally or through clear non-verbal signals,” Chahal says. 

While the responsibility for recognising the withdrawal of consent lies on both parties, the onus is more on the person seeking consent. 

“A shift in behavior, hesitation, or discomfort can all signal the withdrawal of consent and should ideally prompt a clear, verbal check-in. It's paramount to understand that consent is dynamic and fluid, not a one-time agreement.”

How does affirmative consent differ from current and previous models?

The key difference lies in the proactive nature of affirmative consent. “Traditionally, consent was often assumed or implied unless there was explicit refusal. This led to many gray areas and the potential for misunderstandings.”

Affirmative consent, conversely, requires unambiguous, voluntary agreement for each step of a sexual encounter. 

Where does 'stealthing' fit in?

Stealthing refers to the non-consensual removal of a condom, and is considered rape under the new model. 

“Any behavior that disrespects or violates an individual's autonomy, such as the non-consensual taking of something, goes against the fundamental principles of affirmative consent. It's vital that every action, whether physical or emotional, is agreed upon by all parties involved,” says Chahal.

Are there any downsides?

While the affirmative consent model has been largely lauded, critics argue it could be difficult to document and prove in a legal context, given that it relies on personal accounts and interpretations of events. 

“Some worry it may inadvertently shift the burden of proof to the accused, potentially undermining the principle of 'innocent until proven guilty',” says Chahal. 

Has 'affirmative consent' gone far enough? 

While affirmative consent laws are a step in the right direction towards respectful relationships, Chahal says there’s always room for further progress. 

“Achieving societal change isn't just about changing laws but shifting attitudes and behaviors,” Chahal says. 

“While they introduce challenges regarding prosecutorial burden and potential for misunderstanding, they undeniably contribute to a safer, more respectful society.

“In my view, their greatest strength lies in their potential to enact profound societal change beyond the courtroom—by shifting attitudes and behaviors towards consent.” 

Feature image: Getty

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