Is it as simple as yes or no?
Airdate: 
Tuesday, August 4, 2009 - 20:30
Channel: 
SBS

Sexual consent – it’s a contentious issue yet one that remains at the core of all sexual encounters.

But what exactly is consent? And who should be responsible for getting it?

Don’t miss Insight as we bring together men and women to talk about sex and consent and what happens when it goes wrong.

Presenter: Jenny Brockie

Producer: Anne Worthington 

Associate Producers: Sarah Allely and Ronan Sharkey 

 

Related links

Sexual Assault Support Services

Sexual Ethics 

Professor Moira Carmody's sexual ethics research and training: http://www.sexandethics.net/ 

Juror attitudes and biases in sexual assault cases 

Sexual assault has among the highest rates of acquittal and lowest rates of proven guilt compared with other offences. Read this report here: http://www.aic.gov.au/publications/current%20series/tandi/341-360/tandi344.html

Sexual Assault Statistics 

From the Australian Institute of Family Studies: http://www.aifs.gov.au/acssa/statistics.html

Study of Reported Rapes in Victoria

Transcript

JENNY BROCKIE: Welcome everybody, thank you very much for joining us here tonight. Sarah, I'd like to start with you. You were working in the snow several years ago, you knew some footballers from going to a local pub.

SARAH: Yep.

JENNY BROCKIE: And you went to that pub one night after work. I'd like to start just by asking you what frame of mind you were in that night when you went to the pub?

SARAH: I'd had a bad day at work, I wasn't getting along with my boss and thought that I'd just blow off some steam with a couple of other friends and we went down there at about six o'clock.

JENNY BROCKIE: OK, let's hear what happened.

SARAH’S STORY:

SARAH: We were playing pool and we were listening to music and it was probably about two o'clock in the morning. So I said to one of the boys, ' where's the party, where shall we carry on?" And these boys said well let's go back to my place "‘ our place. So there was also girls involved so I thought I'd be safe.

So we got back to their place and we were drinking some more and then, um, the boys also gave me half an ecstasy tablet and then from there, um, I was led into a bedroom where there was two boys and then the leader of the group went out and then came back in and then held my hand and actually led me into another room where there was, um, five or six boys actually in the room.

I was very, very drunk, um, I don't remember saying yes or no, um, what I do remember is being very scared and I was more worried about getting out of this situation with no physical abuse, um, and I was thinking to myself just let it be "‘ just let them do whatever they need to so I could be safe and get home.

I was going in and out of consciousness. I remember at one stage, um, when there was two of them doing things to me saying 'ow, ow, ow, ow, no, no, no, no" and I remember one of the guys that was in the room basically saying "Oh stop, stop", um, but then "‘ one of them pulled out and another kept going. Um, and then I also remember saying "I can't believe that I'm doing this".

The only time they spoke to me was when it was finished and the guy whose room it was who was also part of the assault basically said to me "Can you hurry up and get dressed and get out because I want to go to bed."

REPORTER: Were they talking to each other?

SARAH: Yes, and giggling and laughing.

REPORTER: Did you think about fighting?

SARAH: No, I didn't. I was "‘ I just froze. It was like a "‘ it was like a disassociation, like a disattachment like this was happening to somebody else and not to me.

 

JENNY BROCKIE: Sarah, I know you don't want to go into the detail of what happened that night and I know it's very upsetting for you to watch that. Um, but I want to ask you what happened next. Did you go to the police after that?

SARAH: No, I didn't because there was, um, like six against one and I thought that there was just no hope that anyone would believe me. That it was my fault. That I would be blamed.

JENNY BROCKIE: Did you feel any sense it was your fault or did you just fear that people would think that?

SARAH: I feared that people would think that, yeah, absolutely.

JENNY BROCKIE: And were you angry or what was your emotional sort of feeling afterwards?

SARAH: There was "‘ the emotion afterwards was just, um, like disassociation, like, um, I remember walking home and like hugging myself. It was probably, I don't know, about 5 o'clock in the morning and just not wanting anyone to see me and I remember, um, just as soon as I got home just jumping in a bath and just wanting to scrub all the germs away from me. I just wanted to get the whole situation and just kind of think that it hadn't happened.

JENNY BROCKIE: You went into the room with those men and I have to ask you this question, do you think it's possible they thought you'd consented to what they were doing?

SARAH: I don't actually think they really cared what I thought and I was more interested in getting out safely without actually having physical bruises, um, then anything else.

JENNY BROCKIE: Now you've watched the debates in the broader community, haven't you, in recent months and you've decided to come in here with all these people to answer questions about this, why?

SARAH: Because I believe that it's time and it's really important that to stop blaming the actual girl and to start looking at also what the other events with what the males were doing, you know. It was what she was wearing or what she was doing or, you know, who she went with and why did she go home with them and I kind of think well I didn't really do anything wrong. I signed up to go back and have some drinks, I didn't sign um"‘to"‘up to be sexually assaulted by six males.

JENNY BROCKIE: OK, I want to hear what people's response is listening to that story. Krystal what's your response in terms of just the circumstances that Sarah describes?

KRYSTAL TRIKILIS: Um, first of all, um, I'm sorry for what happened but you "‘ I believe you needed to assert yourself more. If someone's dragging you to a room and you don't want to go you need to say hang on a minute, I'm "‘ I can't come here for that, I came here for drinks and a good time.

JENNY BROCKIE: So is that your first reaction hearing the story s that the main thing that you think?

KRYSTAL TRIKILIS:I don't know. This is so hard because like I said before, there's a fine line between "‘ I believe it's the males' fault as well because the male should know like on body language and stuff.

JENNY BROCKIE: I'm very interested though that you say that and I'd like to talk about that a bit more because we have heard that kind of response quite a lot when we've heard other stories like. This Sarah, do you want to respond to that, that you shouldn't have gone into that room, that you "‘

SARAH: Yeah, I mean I think about that every day and, um, but the thing is that I still don't think that I did anything wrong and I was quite intoxicated. I was quite "‘ I kind of wasn't sure. I mean he took my hand and led me into another room. I wasn't until I got into the room that there was six guys waiting.

JENNY BROCKIE: Anyone else want to pipe up here, I wonder, yeah, lady in the front row.

LAUREN HENDRY"‘PARSONS: I'm finding it interesting that the first thing we're thinking about sounds like blame who should have done what and where and when I think about sex I think about being with somebody and being about mutual pleasure. So if you're in a room with a pack of guys and they're having sex with you, at what point are they thinking this person's having a good time with me? I'm having sex with this person.

JENNY BROCKIE: Or not.

LAUREN HENDRY"‘PARSONS: And if they're not having a good time stop.

JENNY BROCKIE: Cliff, let me bring you in at this point because you grew up in a surfing community and you now help reason sexual ethic work shops with rugby league players, does that story of Sarah's sound familiar to you and what about the point that's just been made about sex and pleasure and the way men think in these situations?

CLIFTON EVERS, GENDER AND CULTURAL STUDIES, UNSW: Well they're generally not thinking about the person, and you did nothing wrong, it's always the guys doing something wrong in that situation. I've done research with guys and I grew up with guys and very close knit groups of guys. Surfing, it can happen in the workplace, it can happen through schools and there's "‘ you will have a bunch of guys, they look up to the older ones, they get into a situation at a party, so to speak, some of the guys "‘ one of the girls is really drunk, they take her into a room, they invite the other boys in. Initially it's not about them all having sex with the girl and then the peer pressure will grow in that situation and these guys have grown up together, they've gone through things together, they've looked out for each other, so the opinions of their mates is at the forefront of their considerations. What are their mates going to think?

JENNY BROCKIE: So they're thinking about the other blokes they're not thinking about the woman.

CLIFTON EVERS: They're thinking about other blokes, the girl does become a piece of meat. They're not worried about the feelings or the pleasure of that person whatsoever. They're worried about their mates and what happens too is some guys get trapped in that situation, they don't want to participate but they don't know how to get out it either.

JENNY BROCKIE: Can you give us an example of when you were younger when you were in that surfy kind of culture.

CLIFTON EVERS:I've been to parties where things have got out of control, there’s a lot of drinking, it tends to happen very early in the morning. There will be a couple of girls left behind who are very, very drunk, a couple of the guys will hook up with them. There might be a group of guys having sex filing into a room, other guys are poking their heads in, seeing what's going on and they're asking permission to take part from the other blokes, they're not asking the other whatsoever. They read silence as consent which of course is just rubbish.

JENNY BROCKIE: They read silence as consent.

CLIFTON EVERS:Silence as consent.

JENNY BROCKIE: Have you been in that situation yourself?

CLIFTON EVERS:I've been a bystander in these sorts of situations and there's times where you're trying "‘ you don't know what to do. You're a young bloke too, you're seeing all this go on, you don't know what to do, you're flat out getting yourself out of a situation in that regard and the collateral damage become these women who just, you don't know what to do in that situation. Because guys don't know what to do in those situations. They don't know how to intervene. I've seen guys get stood over, you know, guys saying you take place "‘ you take part or else.

JENNY BROCKIE: So all this emphasis on the woman standing up and saying no equally applies by the sound of it to some of the guys in this situation.

CLIFTON EVERS:Absolutely. It's a long tradition in Australian masculinity, Australian culture that it's about women who have to police sexuality or consent which and the guys get away with that because they just say oh well ate up to the girl, it's up to the girl. If she doesn't say no then it's all good. They're not taking responsibility for what's going on here.

JENNY BROCKIE: OK, Paul, why are you rolling your eyes here.

PAUL YOVICH, SENIOR STATE PROSECUTOR (WA): I missed out on that culture. I didn't grow up in any such culture. All the talk about responsibility is very interesting because it seems to be about absolving one's self of responsibility and the responsibility in my book rests with the person in the position of strength. The person who is strong has the responsibility to do the right thing.

JENNY BROCKIE: Sarah, I know you mentioned in your situation that there was someone being egged on by the others and somebody that you felt a bit of sympathy for in a way.

SARAH: I did, absolutely.

JENNY BROCKIE: Can you describe that?

SARAH: I felt there was another victim that night. There was a young guy, he probably would have been about 17, 18 years old, he was actually a brother of one of the other participants and he was being egged on "‘ he was basically being egged on and he just "‘ there was something about him it was almost like he didn't want to do it but he did it anyway.

JENNY BROCKIE: I want to get back to the whole idea of why, I suppose, of why this culture exists and whether other people in the room believe this kind of culture exists because Paul's saying he escaped it, Cliff's saying he was in the thick of it as a teenager, some of the other men in the room like to join in, up the back, yeah?

MARK DI STEFANO: I think it's, you know, not isolated to just the footy culture and I think a lot of the stuff coming up recently has been about it's all the boys that all get together. It's about the alcohol and pills and cocaine and going out and getting wasted and that's what the culture is. It's not "‘ sometimes "‘ a lot of the times it is about all the boys. It can be about a footy culture. It can be about a surfy culture, it can be about a school culture. There's a lot of the schools I grew up in there were cultures, um, that "‘ a lot of schools that I knew when I grew up there were these cultures that existed. But a lot of the times and the common element to all this is always alcohol and pills an alcohol or other substances. And I'd just like to say to you once again - I have never had that sort of experience or been close to that experience but from my perspective you didn't do anything wrong because at one stage you said I didn't want to do this but you physically were compelled or coerced to do it and so the onus lies on the males. It's just that simple.

JENNY BROCKIE: Can I just put to you not everyone who takes alcohol and pills ends up being involved in group sex or against someone's will or involved in unwanted sex. I mean what's going on when those groups of men, I mean Cliff's gone part of the way to explain it but I wonder what any of the rest of you think is going on there and does the woman feature at all in those situations, anyone like to buy into that other than Cliff? No, go Cliff? Does the woman feature at all, at all?

CLIFTON EVERS: No. I mean it can in group sex situations. Not all group sex situations go pear shaped. Some are completely consensual but they can go pear shaped they can go pear shaped when alcohol or pills are involved.

JENNY BROCKIE: But there's something fundamental here about doing something that somebody doesn't want to have done or that they're not enjoying or that you know, I mean the question that was raised early on about sexing with about pleasure.

CLIFTON EVERS: Sometimes the blokes are not thinking about her.... or whether she's getting anything out "‘ they're not. It's just about they're giving a slap on the back, high fives, you know, afterwards there's stories to tell, it's about - they're not thinking about those sorts of consequences.

JENNY BROCKIE: Melanie, can I bring you in at this point, you’re a sex worker and you sometimes have sex with multiple men, I'm interested in how quickly that can get out of control from your perspective?

MELANIE ROBINSON, ESCORT: It totally depends on the situation and the sort of people that there are. Certainly if there is alcohol or other chemicals involved that becomes a problem. I don't think it's as much that people don't care what's happening to the woman as much as they're just not aware of it. They're very focused, they're very in their own sort of space and they're just going what they feel and I think that if you pipe up loud enough and make them like bring them back to Earth and go like look, this isn't cool, it can be harder to get through to them if they're a built more effected and say look, this really isn't cool and they'll go "Oh, really, I didn't mean to."

JENNY BROCKIE: But you're in a transaction, like a financial transaction and in a sense you've got a bit "‘ have you got more power or less power than in your personal life.

MELANIE ROBINSON: It depends. For me personally I consider in that situation that I do have power but I would consider that in any situation, even though group sex in my personal life. Anything in my personal life I too actually probably stand up more because I don't feel I have anything that I have to give them. Not that I have to.

JENNY BROCKIE: And when I mean power I mean also protection - like you take precautions, yeah, when you're having group sex.

MELANIE ROBINSON: I do but at the same time.

JENNY BROCKIE: And you have a security guard sometimes in the room, is that right.

MELANIE ROBINSON: Yes, I do. But it still depends on "‘

JENNY BROCKIE: Which is not going to happen if other situations for that people.

MELANIE ROBINSON: Men nah that situation, depending on their attitude think well, I've paid for this girl, it's not like this girl's come into our room and she wants to have a go. It's like we've paid this girl and some people have the attitude they don't realise they've paid for a service. They've paid for my time. They haven't paid to rent and do whatever the hell they please.

JENNY BROCKIE: Tonight we're talking about sex and consent and before the break we talked a little bit about alcohol. Sarah, I'd like to pick that up with you because you talked earlier on about having been drinking a lot and having taken half a tablet of ecstasy. How much had you been drinking do you think, when this happened?

SARAH: Um, I was still able to walk so I wasn't legless, um, look, it had started at six o'clock. It probably would have been maybe 3 drinks, standards drinks an hour up until about 2 in the morning.

JENNY BROCKIE: Three an hour from 6 to 2 in the morning - so a lot.

SARAH: And yeah, and I'm only little only 4-11 and I was only about 50 kilos then.

JENNY BROCKIE: So do you think you would have gone into that room or the same things would have happened if you'd been sober? Do you think anything could have been different, I guess, if you'd been sober.

SARAH: Absolute, absolutely. Absolutely. I probably wouldn't have gone home with them in the first place.

JENNY BROCKIE: OK, what do people think about the role of alcohol in the whole question of consent and sexual consent. Yes, lady up in the back.

WOMAN: As drunk as you may be or as intoxicated as you may be that doesn't give you the right to sexually assault anyone. Does not give you the right to do anything to anybody else.

JENNY BROCKIE: And yet this comes up and again and again in these broader debates an when you look at things on line that have arisen, comments that are made online as a result of what's gone on in the broader community. You often here this thing of oh well, the woman shouldn't have drunk so much or the woman shouldn't have done this or done that. What do you think about that Krystal?

KRYSTAL TRIKILIS: I think it's both party's responsibility. If you're drinking to an extent and particularly a woman, I know myself when I go out I don't drink excessively to the point where I'm going to fall over or I'm not going to know what's going on or I make sure I'm safe. No"‘one else is going to look after me. If I'm out, yeah, I go out with my girls but if I don't look after me no"‘one else is going to.

JENNY BROCKIE: So does that mean that you look askance at women who don't do what you do. I'm just interested in how you.."¦

KRYSTAL TRIKILIS: No, but they need to be prepared.

WOMAN: How can you prepared to be taken advantage of. Like you can't, it account happen when you're not drunk, it can happen when you're walking down the street, someone can push you down the back ally way.

VICKI HEWSON: I don't think she means prepared it means women in today's society have to be more on alert on every day. You don't put yourself in a situation.

JENNY BROCKIE: One at a time.

VICKI HEWSON: These days, alcohol, drugs, going out partying, I mean we all done it, even back when I was younger, and I think you have to think well, think ahead. Alright, I'm drunk, I'm on drugs and alcohol, I'm really in no situation to keep on going out drinking but I decide to knowing that I shouldn't therefore I'm putting myself in harm's way.

JENNY BROCKIE: OK, Nina.

NINA FUNNELL: OK, firstly why the more drunk a woman is the more responsible a guy has to be for his actions for starters and secondly, this is all about victim blaming. It's all about saying ace your responsibility as a woman to avoid getting raped, it's your responsibility not to take risks and if you do get raped then chances are it's because you did something wrong and I think this is completely shifting the onus of responsibility off"¦.

JENNY BROCKIE: But that's the way the debate often plays out, isn't snit why do you think that is?

NINA FUNNELL: Well I think that's a much bigger question about our attitudes towards women, our attitudes towards their responsibility to police their own sexuality and that men, you know, there is almost this notion that men are just insatiable sex beasts who cannot get enough.

JENNY BROCKIE: Cliff, are they.

CLIFTON EVERS: They're not insatiable sex beast, and you know people go out all the time and engage in pleasurable sexual situations an every. But one of the things I was think picking up on there is these women have to try to prepare themselves to go out in the evening to drink and to do otherwise and have to map their safety, so to speak. As a white straight bloke I don't have to do that. I go out and I have drinks. I'm not thinking about these safety issues an in the same way. So there's instantly you've got this double standard and this abrogating of responsibility that I need to help make people safe. When they go out they don't have to worry about being safe. So it's about changing my attitude.

JENNY BROCKIE: I'm interested too in the whole subject of alcohol and men. Does alcohol shift the sexual boundaries for some men, Mark, what do you reckon?

MARK DI STEFANO: What it does, I wouldn't say it shifts the boundaries but what it does it changes the game. I changes "‘ it does change the rules of the game because what happens is when you drink alcohol your rational choice making availability lessons - it's just the way what happens when you drink alcohol. Um, I think what happens is you've got a situation where you've got some young guys, sometimes that are "‘ have so many, so many influences whether that's alcohol, whether that's peer pressure and these are lovely young men who have such high regard for women but get into situations when they drink that they lose their rational control mechanism in their brains. I'm not obviously just sort of, you know, putting it all on science but what I'm trying to say though is I know a lot of guys when they "‘ they transform when they drink, they lose control and the amount of drinks that she had in this situation, that's a lot "‘ that's a lot for me, that's a lot for anyone and we become these "‘ we lose these rational sort of cognitive choices that "‘ and essentially that's what I think consent is those rational choices that we start to lose when we get drunk.

JENNY BROCKIE: OK, I'm interested in reactions to this. Moira "‘ sorry, Nina first.

NINA FUNNELL: Maybe then it's the guys who should be told to think ahead and not drink much rather than girls to think ahead.

MARK DI STEFANO: I totally agree because I can tell you now from "‘ I'm at university now, a lot of very, very talented young men and very ambitious young men when they get drunk go home straight away or they make sure that they don't put themselves in the situation where they're going to get in trouble and I tell you what, these young men are going to be the future leaders of our country and they specifically will tell me I'm too pissed, I won't go after the girl because I know it's a legal minefield so they go home.

JENNY BROCKIE: Legal minefield or they don't trust themselves.

MARK DI STEFANO: Trust – both - they don't trust the law to protect them, they don't, you know, trust that their own sort of, um, what's going to happen in that situation, they don't have control over.

JENNY BROCKIE: Aaron, listening to this, what do you think?

AARON MONOPOLI: I think sometimes it's hard as a male to know what's going on. Sometimes like it does get really confusing with what's sort of being put out there and sort of when you get drunk or whatever you're less liable to be able to read the other person well so sometimes you can make a mistake or they can make a mission take an you both end up doing something either of you want to do or what not.

JENNY BROCKIE: OK, Moira, I want to involve you at this point because I know that you've looked into this whole area of unwanted sex. How much does alcohol feature in unwanted sex?

PROFESSOR MOIRA CARMODY, SEX AND ETHICS RESEARCHER, UWS : It features quite a lot but I think we need to put the context more broadly and by that I think that nobody goes into any sexual encounter without a whole set of experiences and messages from the culture around them. Now whether they've resisted those messages that say that men are there to assert themselves over women or they haven't, is another matter. But the problem is that this kind of gendered expectation, what I call a gender dance where people, particularly men, are supposed to pursue and women are supposed to resist, is embedded in people's practices, even if they are not having them consciously in the top of their mind at that moment when they're having a drink, the idea that you pursue and that a woman somehow has to acquiesce or give access to her body is something that they have lost in the process of the alcohol kind of pro "‘ you know, taking the alcohol in. But they need to think about that before hand and that's why we really have to consider the whole issue about what kind of person do you want to be in the community? Do you want to be an ethical person or do you want to be a person that actually is completely disregarding other people's needs and that's what happens in those situations. They're all about themselves, they're not thinking about the other person at all.

JENNY BROCKIE: OK, but Cliff, how do you shift that? I mean, you know, that description that Moira gave about pursuit and so on, I mean those things are embedded in the way that people behave, you know, if it all goes pear shaped through alcohol and whatever, I mean how do you shift that because I think the thing that's bewildered a lot of people is how common these things are, you know, that one story comes out and then another story comes out and then another one comes out and, you know, men and women look at some of it and say huh, I don't get it.

CLIFTON EVERS: I think, as Moira's saying, you've got to change broader attitudes that guys have and broader expectations that guys have. Like, for instance, a guy is out on a date, it's his third date with a girl, thinks I'm a good guy, she's going to want to have sex with me, she's not really keen but they're at his place, he says "Come on, come on" he puts the pressure on because he knows he wants to talk to the boys next day or he's really keen on the girl and he can't understand why she wouldn't want to have sex with him. She agrees to some sexual acts. They're having sex, he gets carried away, he's going away, he doesn't notice that she's saying no in a situation, they've both been drink an and suddenly we've got a really ugly and bad situation through naivety, stupidity and irresponsibility.

JENNY BROCKIE: Yeah, but how do you deal with that?

CLIFTON EVERS: Deal with it true education by guys stepping up to the plate and saying if I'm drunk and you're drunk we'll have sex in the morning, we'll wait to the morning, what's the big deal, you know. And there has to be change in attitudes towards guys.

JENNY BROCKIE: Paul, how does the law deal with alcohol in this situation? We're hearing about people being drunk a lot, how does the law deal with that.

PAUL YOVICH: Like it deals with most situations, far from perfectly. I prosecute in Western Australia so I know the law there best and in Western Australia intoxication is not specifically relevant to the issue of consent in a legal sense but it can be in a factual sense and it certainly can in a practical sense of what the prosecution can prove. Alcohol affects everybody's memories, alcohol affects everybody's judgment and so when you have to prove a case beyond reasonable doubt you know that a witness who's had too much to drink might be a more difficult witness to believe, not that they're honesty is questioned but their reliability is questioned that a person is perfectly sober. But not just a sexual offence but all kinds of offences happen far more often when alcohol's involved.

JENNY BROCKIE: Pauline in most States the law says that being drunk may negate consent, largely the woman's consent, you're worried by that, by that idea that it may negate consent, why?

PAULINE WRIGHT, WOMEN LAWYERS ASSOCIATION: The problem is that it can mean that yes means no and that puts, in the typical case, the young man, for instance, if there's the two of them have been out on a date, they've both had a few drinks, they have had, you know, they're a boyfriend and girlfriend, they regularly have sex, they both get drunk, they go home and the usual thing for them to do would be to have sex. The girl might be saying yes, um, but then perhaps the next day think that it was wrong, maybe they split up the next day, I don't know.

But it bothers me that because she was drunk that her saying yes the law might say no, that she didn't have the capacity to say yes because she was drunk. That becomes really difficult for a young man. So another scenario would be a first date where there's a young man and a young woman going out together, the girl is thinking this is the first date - I'm not going to have sex with him. They both have too much to drink, they go home and they do have sex. The next morning, um, he doesn't call, he doesn't ring her, she feels humiliated, is that then a sexual assault? Is that rape?

JENNY BROCKIE: So you're talking about regret.

PAULINE WRIGHT: I'm talking about regret turning in someone's mind to a sexual assault and I "‘ don't forget that this can happen both ways. It can be a young man for reasons of, um, of his own saying that I was drunk, you had sex with me - I couldn't consent.

JENNY BROCKIE: OK, Ian McClintock, you're a defence lawyer, do you agree with that? You're defending a lot of these people who are brought up on charges like this?

IAN MCCLINTOCK, DEFENCE LAWYER: Getting back to the alcohol thing. Alcohol is a social lubricant and people take it in order to become disinhibited. The position in relation to consent is under the law as it now stands in NSW that if you're substantially impaired by alcohol or a drug that may affect whether there's consent. There is"¦.

JENNY BROCKIE: But doesn't it affect your capacity to give consent?

IAN MCCLINTOCK: If it goes to the point where you can no longer consciously agree to sex, of course it does but one of the difficulties is alcohol is often associated with sex in, you know, a very positive way. People, you know, like drinking alcohol and that is used as a way of, um, enjoyment and ultimately enjoyment of sex. So it's a very difficult area, a large number of people who are charged are drunk themselves and also the person with whom they've had sex is drunk and it is often difficult in circumstances to make a determination whether the evidence is reliable or truthful.

JENNY BROCKIE: We know it's a very low conviction rate with sexual assault cases?

IAN MCCLINTOCK: Sexual assault cases where there's virtually no circumstantial evidence rely on usually one person's word against the other and juries generally look around for evidence that would confirm that there was lack of consent and it is a difficult area and probably always will be because it's private and if there's no injury or there's no very recent complaint it's one person's word against another and if there's no confirmation then generally the person probably should be acquitted.

JENNY BROCKIE: Paul, does a woman have to say no or physically resist sex to establish a lack of consent?

PAUL YOVICH: Technically no. A failure to resist physically is pretty universally now not positive evidence of consent and in some places a failure to say no explicitly does not mean consent but as a matter of fact the state of mind of the accused is always important. In some States they have to positively know and intend to have sex without the other person's consent. In Western Australia that doesn't apply but if they have an honest and objectively reasonable but mistaken belief in consent they're not guilty. So the only way in which a person may know or have a basis for knowing that there is no consent is if it's communicated to them and that's sort of common sense as well as the law.

JENNY BROCKIE: A lot of people on Twitter apparently are saying Sarah, not in relation to you, but just in general, just call rape, just say no, just shout out just shout rape. You did mentioned that you said you said no, no, no at one stage during this but you didn't scream and try and get away and try and get away do you think people expect that. Why what do you say to these people who say why didn't you just scream.

SARAH: Before this happened to me I was one of those people who thought the same thing. Why didn't you kick them in the balls or why didn't you do that? But I actually froze, I froze, I was actually going in and out of consciousness. I was going what on earth is happening to me and as much as I wanted to movie my body or move my mouth it just didn't want to come out.

JENNY BROCKIE: Lady up the back, yeah.

WOMAN: In high school I think I was about in Year 9 or 10 we had a seen your officer come and talk to us, I went to an all girl school to present these situations from happening. One thing he said if you're on a date and you're at a boy's house and you think he's trying to pressure you into doing something, say yes, don't make him feel like you're resisting physically, so as though you know, you're not physically abused and then when you have a situation where the male is more calm and he doesn't think he has to physically hold you down then whenever you have a chance to run away, runaway. So that's what I was taught by a senior officer in high school.

JENNY BROCKIE: Paul's shaking his head in dismay at this idea.

WOMAN: I asked him I said say this situation occurs and say you're not physically saying no, no, don't for fear of him retaliating physically on you so it's a little bit calmer situation for you to be able to run away and then afterwards and kindly turn around and say yes, yes, yes, yes and turn around and say how was I supposed to know.

JENNY BROCKIE: Are we going to have to move on. There are so many questions all of this is raising but there's a lot to get through here. And Nina, I would like to talk to you your story because there's always this situation of being pressured into having unwanted sex also being in a situation where you go ahead and have the sex even though you don't want to have the sex and do it anyway. You've been in a situation like that explain to us what happened.

 

NINA FUNNELL: I started seeing a guy and we went out and had some drinks but before we went out I had to leave a bag full of university books at his place so at the end of the night I had to go back to his place so I could get my bag and once we were inside, um, he shut the bedroom door behind him and sort of said jokingly you're not going anywhere and I said to him quite, um, I'd been quite forth right I said no, no, I'm not coming in for sex I'm coming in to pick up my bag. And it was this weird "‘ it was a really, really pressured situation where, you know, on the one hand you like this guy, you don't want to seem prudish, you don't want to shut him down, um, but you also don't want to be there and it's really difficult to know what to do in that situation and in the end I did actually go ahead and have unwanted sex because at the time it just seemed like an easier thing to do and there was pressure and I was scared of you know, would it turn to physical violence if I tried to fight back and it was said before, why don't women just assert themselves but that assumes that women are able to assert themselves and that environments aren't loaded with threat and loaded with fear and at the time I just, um, it just seemed easier to acquiesce and the next day I was really, really upset about what add happened. I didn't necessarily "‘ at no point did I consent to it but I also didn't say no. I just sort of said nothing and froze. Um, and the next day he got up and he was like wanting to take me out for breakfast and, you know, he had no idea.

JENNY BROCKIE: So a total "‘ and do you think he genuinely misread that situation.

NINA FUNNELL: He completely misread the situation and I think the tragedy of this is that those sort of situations could be so easily avoided if young people were taught skills to be able to negotiate sex better and be able to negotiate consent better an that's not what we're taught in high school. We're given a lot of stuff on STDs and pregnancy and how to put a condom on a banana but we're not talk how to have these conversations to so at the end of night when you're in this room and there's all this pressure bearing down on both people in that room it's really difficult to know.

JENNY BROCKIE: And how did he react when you told him? Did you toll him none.

NINA FUNNELL: You never told him.

JENNY BROCKIE: You never told him how you felt.

NINA FUNNELL: No, because I doubted myself in that situation the next day. I internalised what society probably would have told me which is well it's your fault for not asserting yourself. So I actually blamed myself.

JENNY BROCKIE: Anyone else here had unwanted sex, had sex when they didn't really want to?

KERILYNN PETERSEN: I come from a community in Salt Lake City, Utah where nobody has premarital sex because it's a very religious community so coming out here to Australia it's very different to me because there is that expectation, I felt that pressure immediately as soon as I started dating down here so there were a couple of circumstances where I was dating somebody, I had been dating him for a little while and there was pressure there and so I ended up having sex in the guy. I liked him, I wasn't rape or anything but I felt so bad about it afterwards and I made a goal not to ever have that happen again. I tell people right up front now when I'm going on a date he says go back to my house. I say OK, I'll go back to your house and I'm not having sex with you. I throw it out. There. If we end up having sex great, if not I've thrown that out there.

 

JENNY BROCKIE: We are talking about sexual consent and before the break we were talking about women having unwanted sex and I'd just like to pick up on that briefly before we move on because we heard from you, Daisy, about your experience and also Nina's experience around I just wonder about this business of saying no and Nina, I wanted to ask you about saying no and what sort of responsibility women have in this situation to be clear about whether they want to have sex or not.

NINA FUNNELL: I think it's important to point out that consent can never be assumed, it has to be actively given in a situation. You can't interpret silence as consent or the fact that she got in your car on the way home as consent. I've also had another experience which I can talk about where it was very different. It was a couple of years ago I was walking home after uni and I was grabbed from behind and I had a blade held to my throat and I was dragged into a park to a told point blank I was going to be raped and killed and I was bashed senseless and strangled. And I did fight back in that situation and as a result I was indecently sexually assaulted but I wasn't raped.

So I've had things on both ends of the spectrum. I've had that very, very violent episode which people automatically recognise as rape but I've also had those unethical experiences and for me the interesting thing is I have no trouble talking about the time when I was bashed and held at knife point because people automatically recognise that as a crime. The other stuff though people don't often recognise that as a crime and so I said I'd been assaulted by a boyfriend people might go well what did you do to provoke that? Um so we have this problem where there is a lack of discourse in this country around this stuff because there is still a lot of victim blaming that goes on and there is still all this focus on the woman and did she do enough to fight him off.

JENNY BROCKIE: Anyone else like to comment on that? Moira, yeah, because it does get back to this thing which started with is consent as simple as yes or no? There's a very black and white view on this in the community men people hear other people's stories and I just wonder how black and white you think it is?

PROFESSOR MOIRA CARMODY: I don't think it is and I think that's fundamentally why we end up in these debates where people get polarised because consent is a process. The fact that you go home with somebody doesn't necessarily give you any indication of what you're consenting to. You don't know what's in that person's mind, what they're fantasising about, what their desires are, what your desires are and whether they match. I mean one of the things in terms of sex work, for example, is clearly negotiated situation of what's on offer, what's the price is and what's going to happen. Now we can learn a lot from those sort of situations. Why don't we "‘

JENNY BROCKIE: Well Melanie's shaking her head up here as a sex worker to say that's not what it's like. Why Melanie?

MELANIE ROBINSON: Full service is expected to be massage, oral sex with a condom and sexual intercourse. It doesn't have to include that but that's generally what would be expected. Anything beyond that may be negotiated before hand, it may not be. And to me one of the vital skills that all the sex workers have is being able to pick what people want, what they don't want, sometimes you do ask specifically. I'll ask is this fine? I could be cute about it but it's trying to pick up on the little things that they want.

JENNY BROCKIE: Moira and I guess that's what I wanted to pick up with you on, is given so much sexual engagement is nonverbal. When we talk about negotiating things, that's not the way sex happens all if time. People don't sit down and talk to one another about what they want to do and not want to do.

PROFESSOR MOIRA CARMODY: No, and people think if you talk about it can it can be a passion killer. That's what a lot of young people say to me about it. But the point is we don't do anything about teaching people how to read nonverbal cues. We don't talk to them in schools, in sexuality programs about as Nina said, anything beyond the mechanics and the basic plumbing issues really very often and so they don't know how to negotiate consent. They know "‘ they might know consent's an issue they don't know how to do it and that's why it's really important we teach skills around how to do that for women and men so they know what to expect in those situations and people can't say I was drunk and I didn't know.

JENNY BROCKIE: But who's going to go to sex school in terms of school, you know, be taught those things? How does that work? How do you do it?

CLIFTON EVERS: If it's about pleasure because at the moment they're learning from each other and it's full of this misinformation and when they need advice around sex they're turning to their mates who don't really know. So it's the blind leading the blind half the time. So they're getting all this misinformation miscommunication so they're not finding out about this stuff. If people said look, you can come to this class, you can come if a 6"‘week period and learn how to negotiate about sex and the chance is you're going to get laid more, guys are goings yeah.

JENNY BROCKIE: Aaron, your reaction to that?

AARON MONOPOLI: Like I probably wouldn’t end up going to that if I heard about it. I'd feel weird.

JENNY BROCKIE: Up the back there.

MAN: It comes down to common sense. If a girl says no, that means no, if a girl says yes, it means yes. It all comes down to communication and responsibility.

PROFESSOR MOIRA CARMODY: People don't know how to do that is my point. People are saying to me they don't actually know how to do that process.

JENNY BROCKIE: Heidi.

HEIDI EICHLER: If a girl is really drunk, vomit, falling over she's obviously not consenting to sex. If she's in a relationship and she's, um, you know, in trackies, hadn't had a shower, clearly, you know, doesn't really want to have sex.

JENNY BROCKIE: That's the way the girl think, how does a guy thing, Cliff, if a girl is really drunk to some guys is that a signal that she's somehow up for it in their eyes.

CLIFTON EVERS: To the majority of guys that's not a signal that something can be done here or you can get away with something.

JENNY BROCKIE: For but for some it is.

CLIFTON EVERS: For some guys when the opportunity arises ate ant opportunity and about them saying stuff it, I'm going to go ahead with it any way.

JENNY BROCKIE: OK, Lauren, you spoke up earlier and I'm just interested in getting back to the issue of unwanted sex, have you ever been in a situation like that where you've had unwanted sex?

LAUREN HENDRY"‘PARSONS: I've been fortunate enough to get myself out of situations which might have resulted in unwanted sex or in which I was being pressured. I feel quite sexually confident and I also feel able to say no when I don't want something and.

JENNY BROCKIE: Have you ever been in a situation where you've been frightened though?

LAUREN HENDRY"‘PARSONS: I have, I have and it was with someone who was slightly older than me, with in my particular university social context - had a lot more social power and, um, he put it to me that my refusal to have sex with him was to draw out some kind of ongoing relationship so that I could be cooler because if I didn't have sex with him he'd keep coming back until he could have sex and I'd entrap him as a younger woman and up my social, um, kind of capital, which looking back at it is quite funny but when straight into university, first year, it's all really a little bit intimidating.

JENNY BROCKIE: And what about this idea that you hear of oh, a no can turn into a yes, what do people think about that notion, Lauren?

LAUREN HENDRY"‘PARSONS: I heard what the young man said earlier about a girl says yes, she means yes, she means yes, a girl says no, she means no and as nice as that is and I think in a lot of situations that's the case, a no can turn into a yes and a yes equally can turn into a no. People are allowed to change their minds and there also is a grey area and there's such a kind of fine line between seduction and coercion. What is bringing someone into the mood and what is forcing someone to do something that they don't want to do.

JENNY BROCKIE: Krystal, you've got a comment to make on that? No. Moira, I just wonder what you think about this because the minefield, negotiating this minefield, you know, how do men and women negotiate some of these areas that are a minefield that aren't as clear as they sometimes are?

PROFESSOR MOIRA CARMODY: A lot of people do it really well and I think that's the thing we've got to remember that there are those people, you know, but there are also particularly I'm interested in young people because the work I've done with them suggest that they are very confused by all these messages that we've been talking about here tonight, that they hear all of these different things and they don't quite know what to do with it but what we have found in the sex and ethics program that I've developed is that they love the opportunity to be able to talk about sex and to find out how you actually do things like negotiate consent and the fact that it's not a one off, that just going home with someone or getting in the car with them or dancing with them in a club or something doesn't give you cart blanche for everything that's on the menu. You've got to actually work it out and you've got to do a process and pay attention nonverbally as well as verbally.

JENNY BROCKIE: Heidi, just quickly.

HEIDI EICHLER: I think it's interesting how love hasn't been mentioned this whole discussion. I think a really good way of, um, battling the minefield, as we say, so if you love someone, you know, have sex with them, if it's still consensual, that's a great way of going by it.

JENNY BROCKIE: Ian, I just wonder we know that jurors become very important when these things get to court, are some of those broader community altitudes your best friend as a defence lawyer when you're looking for jurors?

IAN MCCLINTOCK: I think juries are a great democratic institution and they usually reflect the community. The negotiation of sexual politics is a very difficult thing and juries are "‘ bring with them the experience from the community that we all have and I wouldn't say they were a defence counsel's best friend. I think they're probably the justice system's best friend.

JENNY BROCKIE: Just to wrap up, I want to go back to you Sarah, having listened to all of this tonight, um, just your impressions of what you've heard and I just wonder how that experience that you say you had that night has affected the rest of your life?

SARAH: Um, basically I suffer from post"‘traumatic stress disorder now, I used to be quite a vivacious kind of person, I'm very isolated, I stay home a lot, I've, you know, got an eating disorder because of it because I keep myself shielded so I'm not good looking enough to have that attention. Um, yeah, so basically it's "‘ I mean it hasn't ruined my life. I've basically gone how can I make a bad situation into a good one and I've gone to uni and started studying gender studies, you know, and to get the message out there that this can happen. It just happens and it can happen to anybody.

JENNY BROCKIE: OK, a lot more to talk about. I know there's a lot more we all want to talk about and you can go online and to do that and you can keep talking to Sarah, Cliff and Pauline if you're in the eastern States. Just hop on our website and click on the live chat. Thank you all for joining us tonight really good to have you all here. You will find other stories there and you can find other stories too.