WILL IT STILL BE CONSENT 2 YEARS FROM NOW?
In 2021 people with significant assets would be foolish to marry without a pre-nuptial agreement. Most smart people I know (and especially those who come together later in life) have one. I certainly have one. In 2021, only the foolish are rejecting a pre-nuptial on the basis that – ”we are in love and entering into a pre-nuptial agreement would spoil the mood – and we will always treat each other fairly.” The facts are, while they may well be in love when they marry – they may not still be in love in two or three years – and while they would treat each other fairly now, will they still do so in three years.
No one enters a marriage with the intention of falling out of love. No one enters a relationship with the intention of not treating the other party fairly. However, the facts are that 30% of first-time marriages end in divorce, and up to 60% of second marriages end in divorce. The average duration of a marriage in Australia is just 12.3 years. What is more, many divorces involve acrimony and the complete absence of any desire to treat each other fairly. This is when the ”pre-nuptial” is essential.
The same is true of consent. While the party you are playing with might be a trusted friend today – they may well be something entirely different in 2 or 3 years – and if they are – there is every chance they will use what they can to bring you down – and an act that might not be seen as consensual might represent such a chance. This is the first good reason to take extra care in securing ”enthusiastic and informed consent for everything you do to another person.
Life’sLife’s Hierarchy recently hosted a webinar for members on the very important issues of consent. The webinar also touched on “limits” – recognising that consent and limits are, in fact, and in law – the same thing. Consent by law needs to be ”enthusiastic and informed” – which means that the individuals involved must know exactly what will happen and how far it will go. Agreeing to sex, for example, is not the same as agreeing to anal sex – and without consent for anal sex, it must be assumed to be beyond a limit.
Increasingly the law is focusing on the requirement for ”enthusiastic and informed consent. This concept is central to new laws being framed by state governments across Australia. Enthusiastic consent is defined differently in each jurisdiction but essentially revolves around the concept of:
- An individual having the time to understand what is going to take place, time to consider the consequences, reflect on their involvement and articulate a clear decision.
Informed consent involves:
- An individual being old enough, sober enough, and informed enough about what is to follow and its consequences to make an educated judgement about their involvement.
The facts are:
- No is NO.
- The absence of yes is NO
- Yes, without a clear understanding of what is to occur can be NO.
Oh – by the way, consent is not just required for intercourse or a sexual act. Consent can be required and should be required to kiss, hug, or pat any person. There is even a growing view that grandparents should get consent before kissing or hugging a grandchild. This illustrates how complex this issue is becoming.
Regardless of the act, it is also important that the parties understand what is being consented to. There are three critical issues in this regard:
- Understanding exactly what the individual or individuals are consenting to. A woman consenting to sex might mean vaginal sex but may not include anal sex.
- Recognising that consent can be withdrawn at any time – invalidating prior consents. Consent can be withdrawn at any time and must be respected at that time.
- Consent that is not informed or enthusiastic is not valid. Even written consent can be invalid if the individuals are considered ill-informed or lacked time to consider the issues properly.
The fact is, even where consent is given, it is not open-ended. An individual can only provide informed consent to a specific act.
Of course, securing consent is not just about the law. We also have a moral obligation to secure and respect the limitations of ”enthusiastic and informed consent. All parties have a moral responsibility to secure consent and respect the physical, mental, emotional and relationship health of every individual involved. The facts are however:
- If you ignore the moral issues – the courts will not ignore the legal issues.
- There is community support for strong consent laws and the courts acting.
- Some of the new laws are yet to be tested in court.
This is a critical issue for everyone. Equally as critical are the issues arising from 24/7 D/s relationships where consent may not be enough. Consider:
- There can be legal implications of causing damage to a person, even when they consent.
- There will be legal implications of causing death even when the person is consenting.
- New’ New’ coercive control” legislation is being prepared in most states.
- New’ New’ coercive control” legislation is yet to be tested in the courts.
The implications of this are clear; we can no longer assume that the law is on our side or that acts that we consider consenting are also legal. There is a lot of talk about ”intimate terrorism.”
Just because two parties are getting along today does not mean they will not be at each other’s throat in the future, or both moral and legal reasons consent is essential. For moral and legal reasons, consent is limited. Some of the behaviours that have been taken for granted, while morally sound, may now face legal challenges. Indeed, the law needs to be front of mind for everyone in BDSM. So, what is the way forward? Very-good question! Following are some thoughts to ponder.
In terms of consent, ensure you satisfy yourself that all parties:
- Are of legal age.
- Are aware enough to give informed consent.
- Are conscious and sober enough to give informed consent.
- Have the time to reflect and articulate a clear decision.
- Are not at any stage under any pressure.
- Articulate clear and unequivocal consent.
And for the record – written consent is not always a solution. Written consent might be considered enthusiastic but may not be considered informed. An uninformed person can agree to something when they are not truly clear on what will happen.
Also, in terms of consent, consider a process involving:
- Always set aside time to discuss what is going to happen and the potential effects.
- Ensuring all parties have the opportunity to consider all issues.
- Ensuring all parties articulate their consent or otherwise.
- Ensuring that all parties have the capacity to withdraw at any time.
- Ensuring that all parties understand how to express non-consent.
- Respecting the articulated decision of all parties at all times.
It can also be helpful to:
- Ensuring you have a relationship with all parties before an act.
- Move forward on the basis that you want a long-term relationship.
- Ensure that all parties are aware of anything that might go wrong.
- Have others present to bear witness – where it is to be extreme.
With a 24/7 relationships, a preferred approach might involve:
- A documented and detailed ”contract” articulating everything of consequence and signed by all parties.
Life’sLife’s Hierarchy is currently developing a BEST PRACTISE model for consent and BDSM relationships that can push the limits within the law. To inform this model, we are seeking input from everyone involved in BDSM. As such, your thoughts and comments are most welcome.
For the record, the code of conduct for Life’sLife’s Hierarchy includes the following:
- Members must be over the age of 18 years.
- Members may not introduce to the club or its events people under the age of 18 years.
- Members must appreciate that the Club website contains adult content.
- Members will keep confidential any information about members & guests.
- Members will accept the rulings of the Moderator of Life’sLife’s Hierarchy
- Members must ensure consent and the respect of limits.
The golden rules are:
- Satisfy yourself that all participants have given enthusiastic and informed consent and that everyone involved will benefit from the experience.
- If consent is not informed and enthusiastically confirmed – STOP.
Email your thoughts regarding this article and BEST PRACTISE to – email@example.com.