It's time to talk about consent
In an era of increased global debate, verbally articulating a yes or no to sex is the only way of way being sure that consent has been given.
Published 30/10/2016 | 02:30
The bestselling author Louise O'Neill has argued that Irish people use alcohol to blame rape victims and make excuses for rapists.
An issue is often made of how the victim was dressed, and how much she had drunk, if she becomes the victim of a sexual assault.
O'Neill explored these themes in her bestselling novel Asking For It, and she returns to the topic of consent in a documentary of the same name to be screened on RTÉ on Tuesday.
The programme is timely as the issue of sexual consent has come to the fore in Ireland. Lawyers are debating how exactly it should be defined in law, and Trinity College has introduced workshops for fresher students where they discuss what it means.
Ellen O'Malley Dunlop, Professor of Law at the University of Limerick, says there a need to define sexual consent in Ireland's new Sexual Offences Bill.
In Britain there is a legal definition that is easy to comprehend: "A person consents if they agree by choice and have the freedom and capacity to make that choice."
Prof O'Malley-Dunlop welcomes the initiative at Trinity College where students arriving in halls of residence this year attended sexual consent workshops.
Up to 400 people went to the workshops, which were run as a pilot project in the college. They are now likely to be available to all Trinity students next year.
Contrary some reports, the consent workshops were not mandatory, but students moving to the halls of residence were encouraged to attend.
Trinity College student counsellor and psychotherapist Trish Murphy helped to devise the programme, where young people discuss typical scenarios.
"Our aim was to get students talking about consent and look at the grey areas.
"They would look at a scenario where a couple meet up, and they might have been drinking. They look at how consent is a continuing ongoing issue.
"Just because I say I'll go back for tea with you doesn't mean 'yes' all the way."
A key question is how sexual consent is articulated. If you are going out with someone on a first date, should it be verbally articulated?
"The students were saying that it can be communicated through looks, gestures, tone and voice, and you have to check it out. If in doubt, I think you have to ask," says Murphy.
Anne Sexton, sex columnist with Hot Press, believes it is a good idea to seek consent verbally from a potential sexual partner in certain circumstances.
"I think that when you first get together with someone and you are not in an established relationship, asking and getting a verbal 'yes' is probably the smartest thing to do.
"That way, there is no misunderstanding."
Sexton believes that most people can tell the difference between someone who is actively engaged sexually with them, or is resisting, or doesn't seem that keen.
There are some lingering traditional attitudes, where people assume that a person gives consent unless they say 'no'.
"People can be too ashamed or embarrassed to say 'no', or people in an assault situation often freeze up and don't know how to articulate a 'no'," says Sexton.
"If you put the onus on everyone to give a 'yes' it works best - particularly if you are not in a long-term relationship. I am not saying you don't give consent if you are part of a couple, but couples generally have a shorthand for this type of thing."
The issues of consent have been raised after the case of the Welsh footballer Ched Evens, who had sex with a woman in a hotel in 2011 and was accused of rape.
In the case he denied having sex with the teenager when she was too drunk to give consent, and he was found not guilty at Cardiff Crown court. Victims' support groups voiced alarm after details of the sexual history of the woman was aired in court.
The campaign group Women Against Rape criticised the decision to allow the court to hear evidence from former partners, saying it risked deterring women from reporting rape for fear their sex lives would be aired in court.
Prof O'Malley-Dunlop says the law should set out clearly the circumstances where consent cannot be given.
This would include cases where the complainant was asleep or otherwise unconscious, or too affected by alcohol or drugs to freely agree to sexual activity; while Anne Sexton says a YouTube video, Tea Consent, makes a comical but accurate analogy between making someone a cup of tea and having sex with them.
As the video puts it: "If you say 'Hey, would you like a cup of tea?' and they're like, 'Uh, you know, I'm not really sure,' then you can make them a cup of tea, or not, but be aware that they might not drink it.
"And if they don't drink it, then - and this is the important bit - don't make them drink it. Just because you made it, doesn't mean you're entitled to watch them drink it. And if they say, 'No, thank you', then don't make them tea. At all."
The video, which is hugely popular on YouTube in various formats, says: "If they're unconscious, don't make them tea. Unconscious people don't want tea, and they can't answer the question 'do you want tea?' because they're unconscious."
When someone has passed out or is extremely drunk, the issue is fairly clear-cut, but in other circumstances there may be grey areas.
"This is a difficult area, because I don't think hardly any of us over the age of 25 have always had sex when we were 100pc sober," says Sexton.
"There may have been one or two drinks or a lot of drinks taken, but I do think you have to be a lot more cautious when you are with someone and you are not in an established relationship.
"I am not saying you have the right to have sex with your partner who is blacked-out drunk. But when you don't know somebody, you don't know how alcohol affects them, and their ability to make rational decisions."
Prof O'Malley-Dunlop says there is a generational shift in attitudes around issues such as consent, and change is happening slowly.
The allegations of groping against the American presidential candidate Donald Trump show that consent was hardly on the minds of perpetrators in the past. And often it was women who were made to feel shame.
Jessica Leeds, a businesswoman from Connecticut, alleged that in the 1980s Trump groped her while they were sitting next to each other on a plane.
She did not complain to the airline staff at the time, Ms Leeds told the New York Times, because such unwanted advances from men occurred throughout her time in business in the 1970s and early 1980s.
"We accepted it for years," she said of that kind of behaviour. "We were taught it was our fault."
Asking for It? Reality Bites, 9.30pm on RTÉ2 on Tuesday