The Curious Question of Consent

Warning – This post will contain discussion about sexual violence. If that isn’t your speed; feel free to give this a miss. Thanks for stopping by.

—- The Brave Bothan

We are currently living in a dangerous time. Not due to an increase in sexual violence, or related offences – but because the framework under which we consider sexual violence has not been adequately defined in the public or legal spheres and we are leaving ourselves open to the potential of a very dark and unforgiving future.

As a single white male I actually feel threatened when I go out to drink with my friends. I’ve never gone out to ‘pick up’ but the possibility of meeting someone while out is not inconceivable to me. So the current political and legal climate surrounding alcohol and consent has me slightly worried.

In Queensland currently this is the fact sheet about  sexual assault published by our state police force. It states that people under the influence of alcohol are not able to give informed consent and that rape is sexual intercourse without consent. There is no information or links to further information given about what constitutes ‘under the influence of alcohol’.

This lack of definition could mean many things – in fact almost anything. I have narrowed it down to what I consider to be three likely outcomes. First: the literal reading that any consumption of alcohol removes the ability to grant consent. Second: Consent, like vehicular transport, is only legal if given under 0.05% B.A.C. Finally consent whilst under the influence must pass, our favourite legal test, the ‘reasonable person’ test. All three options have merits and issues.

Given the lack of definition I feel it would be functionally ‘safest’ to take the literal reading as the intended one. However any amount of logical thought experimentation with this concept shows that it has immediate flaws. If the law suggests that a married couple of twenty years who have shared a bottle of wine over dinner and then, hours later, proceed to engage in intercourse – should be considered to be engaging in rape due to lack of consent I feel this presents a problem. This would be equally problematic to a couple of any persuasion or a relationship of any length. I do not feel it is reasonable or legally acceptable to propose that a zero tolerance policy on alcohol and consent be enforceable -that is some serious 1984 mumbo jumbo.

If we look at the second possibility, 0.05% B.A.C being the legal limit for consent, immediately things become somewhat more ‘sane’ but much harder to enforce. The benefit of the B.A.C path is that it takes the physiological ability of the individual into account, rather than an arbitrary number of standard drinks. However given the problem of transporting an offender to a police station or officer for testing within a time frame that would provide admissible evidence it seems incredibly hard to enforce or gain value from. Given that the majority of rapes are reported 24-72 hours after they have occurred it would be almost impossible to use this as an enforceable law. Whilst it would offer some very limited protection I do not feel it s a reasonable way to read the law as it stands.

The final option, the ‘reasonable person test’ – this has always been a bastion of subjectivity within the law. The law utilises this method for a number of other complex and subjective issues and has done for quite some time. However it is the result I have the least personal faith in. Particularly with issues of consent I feel that this is a very very slippery slope – the mindset of a ‘rational person’ has always been difficult to legally articulate and with the subjective judgement that is involved with sexual consent, I do not feel it is a call any one can make.  It would be very difficult to say that someone reasonably would have denied consent – a thought experiment for me here looks like: I would deem it impossible to say that a married human would have, but for alcohol, refused to engage in an adulterous rendezvous – particularly given the reduced legal implications of adultery in our modern society. This is a fairly cut and dry case for me, the subjective nature of beauty and desire and the deeply personal nature of sexual intercourse rule out a ‘reasonable’ standard for consent.

We are living in dangerous times. We have identified a link between alcohol and sexual violence – statistics confirm this. Unfortunately our system of laws is not yet up to the task of regulating the incredibly nebulous concept of consent – which I think it would fail to do even if alcohol weren’t involved.  I don’t have a proposition for the best way forward – only my usual plea for increased sensitivity and respect in the way we live. A plea, like so many others, to look out for our friends male and female and ensure we are all making choices we can live with in the morning.



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