‘Consent’ – a word beyond its meaning in land Down Under
View(s):Danishka Gunathilaka was recently charged for sexual intercourse without consent with a woman he found on a dating app in Sydney. The charges are serious, even though, Sri Lankans think otherwise due to the lack of knowledge they have in the legal system in Australia.
In Australia, obtaining the consent of the other person for sexual acts is defined very broadly. As a result, when engaging in sexual activities in Australia, extreme caution is advised.
In a nutshell, each party must communicate consent prior to sex. Active consent means that both partners say ‘yes’ to sexual activity. Assuming that the other person shares your enthusiasm is a mistake. Non-consensual sexual activity, including kissing and touching, is harmful and illegal. Any party can say no to the activity any time.
Giving explicit consent shows that you are willing to engage in sexual activity with another person. The desire to engage in sexual activity is communicated by giving or receiving consent. Without consent, sexual contact is considered sexual assault or rape. However, it is not as simple as that.
Consent to sexual activity is the same as sexual consent. Before engaging in sexual activity with someone, one must make sure that the other is willing. It is also essential to communicate with your partner what you want and do not want.
Setting and respecting personal boundaries, as well as checking in if things are unclear, are all part of consenting and asking for consent. Consensual sex always necessitates the agreement of both partners. Sexual activity (including oral sex, genital touching, and vaginal or anal penetration) without consent is considered sexual assault or rape.
In Australian context the consent defines as “Consent is easy as FRIES”. Freely Given: consenting is a choice you make without pressure, manipulation. Reversible: Anyone can change their mind about what they feel like doing, anytime. Even if you’ve done it before.
Informed: you only consent to something if you have the full story. For example, if someone says they’ll use a condom and then they don’t, there isn’t full consent.
Enthusiastic: when it comes to sex, you should only do stuff you want to do, not things that you feel you are expected to do.
Specific: saying yes to one thing doesn’t mean you have said yes to others (like having sex).
Specific: saying yes to one thing doesn’t mean you have said yes to others (like having sex).
Consent is never implied by past behaviour, what you wear, or where you go. Sexual consent should never be unclear. Silence does not imply approval. Even if it is not the first time. Couples who have previously had sex or who have been together for a long time must always consent. In other words, consent must be given if it is free and voluntary, free of fear, coercion, intimidation, or anything else that might be associated with free agreement.
There are laws that govern consent. Intoxicated or drugged individuals cannot consent to sex. Minors are protected by law from being coerced into having sex with an older person.
The above-mentioned concept of ‘sexual consent’ is formally explained to Australian schoolchildren in the seventh grade and upon entry to university. As a result, there is very little room for Australian youth and society to have sex-related mistakes in romantic relationships. I believe that if Sri Lankan players had been more aware of the above legal concepts, talented young players would not have been subjected to such unfortunate troubles.
Thilanga Fonseka
LLB, LLM (Monash)
LLB, LLM (Monash)