Radio Toni Insights with Michelle Sleight and cohost Toni Lontis

Talking Points Radio Toni – Insight Making Sense of Sexual Assault with Michelle Sleight

• Welcome and intro – Listening live on FB, LI we have my EVA Pao ready and waiting to respond to your comments and questions with website links etc, like subscribe and email

• Today’s guest is the beautiful Michelle Sleight who as you can see is right here in the studio with me! This is the second of 6 shows having an open discussion about sexual assault.

TONI - An Empowered Survivor, Michelle knows the difference between being empowered and just surviving.

Michelle was the victim of 6 rapes and one sexual assault beginning at 5 years of age, has experienced the persecution and challenges of her permanent pain work-related injury, has been stalked and powerless, and has lost some close to her to domestic murder.

Now Michelle helps people to stop being at the mercy of their trauma and triggers.

Michelle is an advocate for change in sexual assault culture, and for those who have experienced sexual assault, and in 1997 set a legal precedent around sexual assault.

Michelle authored: “Insight Up Close and Personal Profile of Sexual Assault” for communities to better identify sexual predators and respond in a more resourceful way to the trauma of sexual assault.

Michelle has the processes and knowledge that set her, and clients, permanently free of trauma, triggers, and PTSD.

Good afternoon Michelle

Today’s topics are of a sensitive nature so please reach out and connect and talk to someone if you experience and pain listening to us today. Why are we talking about sexual assault - Sexual assault is a major health and welfare issue in Australia and world wide. For many victims, the effects can be wide-ranging and lifelong. They can experience physical injuries, long-term mental health effects, and disruption to everyday activities such as eating and sleeping habits (ABS 2017; Cashmore & Shackel 2013; Hailes et al. 2019).

According to the 2016 Australian Bureau of Statistics (ABS) Personal Safety Survey (PSS):

• almost 2 million Australian adults had experienced at least 1 sexual assault since the age of 15

• more than 200,000 (1.1%) Australian adults had experienced sexual assault in the 12 months before the survey—an increase from 2012 (0.7%)

• around 639,000 Australian women experienced their most recent incident of sexual assault perpetrated by a male in the last 10 years.

• “Approximately 1 in 5 (21.3% or an estimated 25.5 million) women in the U.S. reported completed or attempted rape at some point in their lifetime, including completed forced penetration, attempted forced penetration, or alcohol/drug facilitated completed penetration. About 2.6% of U.S. men (an estimated 2.8 million) experienced completed or attempted rape victimization in their lifetime.

• About 1 in 14 men (7.1% or nearly 7.9 million) in the U.S. was made to penetrate someone else (attempted or completed) at some point in their lifetime.

• Approximately 1 in 6 women (16.1% or an estimated 19.2 million women) and approximately 1 in 10 men (9.6% or an estimated 10.6 million men) experienced sexual coercion (e.g., being worn down by someone who repeatedly asked for sex, sexual pressure due to someone using their influence or authority) at some point in their lifetime.

• A majority of female victims of completed or attempted rape first experienced such victimization early in life, with 81.3% (nearly 20.8 million victims) reporting that it first occurred prior to age 25.

• The majority of male victims (70.8% or an estimated 2.0 million) of completed or attempted rape reported that their first experience occurred prior to age 25.”(Smith et al., 2018, p. 2)

A component of all sexual assault relates to CONSENT and that’s the topic for today

Michelle tell me about your understanding of consent?

Consent

Four areas of knowledge are required in order to give consent: understanding of what the physical act(s) involve, their meaning, society's laws and cultural norms, and possible consequences (McCarthy & Thompson, 2004). According to theoretical and practical understandings of consent, those key elements include:

• transparency about what is being proposed (not being tricked or fooled);

• that all parties possess similar cultural knowledge about standards of behavior;

• that all parties are similarly aware of possible consequences, such as pregnancy or disease;

• having respect for agreement or disagreement without repercussion; and

• that consent is freely given, and that all parties have the legal competence to freely give consent (being in possession of decision-making capacity and unaffected by intoxication)

USA - Consent could be the most misunderstood word in the English language!

Establishing a standard definition in the penal code of every state and territory will make a world of difference! No state or territory… absolutely none…. provides an actual definition for the word “consent” in its penal code. 24% of penal codes contain provisions that tell us specific – but not all – instances when consent fails to take place. Many use contradictory terms that can make sexual assault impossible to prosecute. 76% of our states and territories have neither provisions nor a definition for consent. Many states blame the victim right in their penal code!

• Consent is a unique and specialized form of “agreement.”

• Synthesizing the definition for consent from Model Penal Code, Nuremberg Code, GDPR and provisions across the US and around the world leads to the easily understood definition of consent:

“Freely Given, Knowledgeable and Informed Agreement,” #FGKIA!

Society needs new laws to recognize when sexual assault takes place!

• Most police precincts in the US scoff at a victim’s sexual assault complaint when the offender is an acquaintance or when they did not use violence to overwhelm the victim. The names for sex crimes differ from state to state, contributing even greater confusion. Some states use the generic term, “rape.” Others adopt words like: “sexual assault,” “sexual exploitation,” “sexual battery,” “sexual misconduct,” “unlawful sexual conduct,” and more. No matter what name is used for nonconsensual sex, all sex crimes should be covered by penal code.

• Here is the simple language each state can adopt in order to consistently uphold every person’s entitlement to consent in all sexual conduct and provide protection from all forms of sexual assault: 

“Nonconsensual sex is sexual assault: Consent is freely given, knowledgeable and informed agreement.”

• While violent rape is the most heinous and “aggravated” form of sexual assault, predators who use a non-violent method to undermine their victim’s self determination over their body, are committing a criminal act.

• The degree or level of a crime, such as a felony or misdemeanor, distinguishes the severity to the victim and the resultant consequence to the offender. Our laws punish burglary using violence more severely than theft with no violence. No matter what type or size weapon a murderer uses to kill their victim, we recognize a crime is committed. And our sex crime laws should apply the same principle.

The age of consent is 16 years of age in the Australian Capital Territory, New South Wales, Northern Territory, Queensland, Victoria and Western Australia. In Tasmania and South Australia the age of consent is 17 years of age. ... The age of consent for sexual interactions is 16 years.

Consent is an agreement between people to engage in a sexual activity.

• Consent means freely choosing to say ‘yes’ to a sexual activity

• It’s needed for any kind of sexual activity, from touching or kissing to intercourse

• It’s always clearly communicated - there should be no mystery or doubt

• There are laws around who can consent and who can't

• Without consent, any sexual activity is against the law and can be harmful

Consent is mutual, freely given, informed, certain and clear, enthusiastic, reversible, specific, ongoing.

Consent sounds like – Yes, absolutely, that feels awesome, id like to, I want to keep doing this, can we, I’m enjoying this, that sounds great

Consent Doesn’t sound like – no, maybe, stop, I’m not sure, I don’t want to, can we stop, can we slow down, I Don’t want to, I don’t like this, I’m not ready, silence and no responsiveness, its not agreeing to go on a date, agreeing to go for a drink, what you are wearing or showing you interest.

Consent and the law

If you don’t have consent, it's an offense.

It’s against the law to do sexual things (even kissing or touching) to someone if they have NOT given or are UNABLE to give consent. This is called sexual assault and it’s a crime.

The law also says that there are some situations where it is NEVER ok for someone to do sexual things with you, even if you consent! These are:

• If you’re under the age of consent. The legal age for consensual sex varies across each state and territory. To find out more, visit the lawstuff website.

• If the other person holds a position of authority, power or trust over you (such as a parent, family member, teacher, carer, support worker).

There are also laws about who can consent and who can’t

You can’t give consent if you are:

• Under the legal age of consent

• Severely affected by drugs or alcohol

• In a vulnerable position (the other person has power or trust over you)

• Being forced or afraid that someone will use force

• Tricked into thinking the person is someone else

• Under the belief that you can’'tor have no right to say no

• Mistaken or tricked about what you're consenting to

• Asleep or passed out

• Semi-conscious or unconscious

• Afraid you or someone else will be harmed ("If you don't, then I will…")

• Made to feel too scared to say no

• Pressured, bullied, manipulated or threatened

• Not able to understand what you're consenting to

• Prevented from leaving - locked in a room or car

Remember: it’s against the law to have sex or continue sex without consent. So even if the other person seems into it, the only way to know if you have consent is to ask.

Asking for consent doesn’t have to be awkward! If done right, it can be flirty and respectful.

Here are some ways you might ask if you’re in the heat of the moment:

Most countries prohibit sex with under-16s or under-18s, but in some places the age of consent is as low as 11, or as high as 20. However, even within counties this can vary widely between males and females and in cases of heterosexual and homosexual sex.

In the UK, the age of consent stands at 16, regardless of gender or sexual orientation. So how does this compare with the rest of the world?

Europe: Spain previously had the lowest age of consent in Europe, but raised it from 13 to 16 in 2013, bringing it in line with the UK, Russia, the Netherlands, Norway, Finland and Belgium. Children as young as 14 are considered able to consent to sex in Germany, Austria, Hungary, Italy and Portugal. By contrast, the age of consent is much higher in Turkey, at 18.

The Vatican is the only jurisdiction in Europe not to have equal and gender-neutral age limits. In accordance with canon law all sex outside of marriage is illicit regardless of the age or willingness of those who engage in it, although the age at which a woman can marry is 14 compared to 16 for a man.

The US: Set on a state-by-state basis, the age of consent ranges from 16 to 18. In some states, a close-in-age exemption, commonly known as “Romeo and Juliet laws”, exists to decriminalize consensual sex between two individuals who are both under the age of consent, according to independent website AgeofConsent.net.

Roughly half of all US states allow children under the age of consent to get married with special permission, either from parents or from a court. Children as young as ten were among the almost 250,000 US minors who got married between 2000 and 2010, The Guardian reports. Several states are in the process of introducing legislation to close these loopholes.

Africa: In most parts of Southern Africa, including Botswana, Namibia and South Africa, people can consent to sex from the age of 16. In Libya and Sudan, the age of consent is not specified, but marriage is legally required before sex is allowed.

Asia and Oceania: Individuals aged below 20 in South Korea are not legally able to consent to sexual activity, and such activity may result in prosecution for statutory rape. At the other end of the spectrum, the Philippines has faced calls to raise its age of consent from 12, with a bill currently passing through parliament to increase it to 16. In Japan the age of consent is low at 13, although some municipalities such as Tokyo prohibit sexual activity under 18 years old in most circumstances. On mainland China the minimum age is 14, rising to 16 in Hong Kong. In all Australian territories, the age of consent is 16, except for in South Australia and Tasmania, where it is 17. In India it is 18, while some strict Muslim countries such as Malaysia outlaw homosexual sex at any age.

Middle East: Like parts of North Africa, most Middle Eastern countries do not have a set age of consent but require that the couple are married. This includes Afghanistan, Iran, Kuwait, Saudi Arabia, the UAE and Yemen. In many countries where sex outside of marriage is illegal, the minimum age of marriage is lower for women than for men. It is common for courts to grant permission for girls to marry below the legal age. In Iran in 2010, for example, The Telegraph reported that as many as 42,000 children aged between ten and 14 were married, and 716 girls younger than ten had wed. In Jordan, 16-year-olds can consent to sex, while in Iraq they must be 18. By contrast, Bahrain has the highest age of consent in the world, at 21.

South America: In Brazil, Colombia and Ecuador, the age of consent is 14, regardless of gender or sexual orientation. Paraguay, meanwhile, has the age set at 14 for heterosexual relations, but at 16 for homosexual sexual activity, and does not have a close-in-age exemption. In Chile, where the age of consent is 18, it is possible for two individuals both aged 17 or under who willingly engage in intercourse to be prosecuted for statutory rape, although this is rare.

Equality and coercion

Equality relates to the balance of power and control between those involved in sexual activities. A reasonable degree of equality needs to exist between the parties engaged in sexual activities, whether that pertains to relationships (authority and dependency), physical and/or intellectual capacity, or age (Conroy, Krishnakumar, & Leone, 2015; Craig, 2014; McCarthy & Thompson, 2004; Ryan, 1997). Gender and gender inequality also play a role in sexual consent. Templeton, Lohan, Kelly, & Lundy (2017, p. 1294) find that "adolescent sexual values, personal beliefs and expectations about sex are deeply shaped by gendered behaviors regulated by their peer and social environments."

Coercion can be described as the peer pressure put on one child by another to achieve compliance (Ryan, 1997). Such pressure can be placed on a continuum. The lower end may include implied authority, manipulation, trickery or bribery. The top end of the continuum may include physical force, threats of harm and overt violence.

If the relationship between two children or young people under the legal age of consent is unequal, non-consensual or coercive, it is abusive and may require a child protection or judicial response.

Age of consent and digital technologies

Recent sex education programs for children and young people aged below or at the age of consent have shifted from a dominantly risk-based paradigm to building knowledge and resilience, particularly with regard to contemporary matters such as digital technologies. Public concern about young people's healthy sexual development now includes debates regarding their use of information and communication technologies, the majority of which are internet-enabled.

The widespread use of mobile phones has led to a number of legal interventions that attempt to protect children from sexual exploitation in online environments. Sexting laws provide a good example of how digital sexual activity does not necessarily align with broader age of consent laws in Australia. McLelland (2016, p.4) points out that, "in many jurisdictions provisions aimed at protecting young people from sexual predation and exploitation can also be used to criminalize and prosecute the sexual self-expression of those under the age of 18" - even when the young person is at the age of consent. A survey of Australian teens and their sexting behaviors finds that, "16-17 year olds must navigate sexual practices that can be both consensual and legal, but illegal to visually record" (Albury, Crawford, & Byron, 2013, p. 4). This can present challenges to young people and those who work with them.

For more information about young people and sexting, see Lawstuff (link is external) and the Office of the Children's eSafety Commissioner. 

Provisions for legal defenses in cases involving sexual activities with a person under the legal age

If a person is accused of engaging in sexual behavior with someone under the legal age, there are various statutory defenses available, which are outlined in legislation. While legislation varies in each state and territory, in general two types of defenses are available (Cameron, 2007). The first type relates to whether the accused believed on reasonable grounds that the person with whom they engaged in sexual behavior was above the legal age of consent. All jurisdictions (except New South Wales) have provisions for this defense in legislation; however, several variations exist regarding restrictions on the use of the defense according to the age of the alleged victim. The defense cannot be used if the victim's age at the time of the alleged offense was:

• 10 years or younger in the Australian Capital Territory;

• 12 years or younger in Queensland, Tasmania and Victoria;

• 13 years or younger in Western Australia;

• 14 years or younger in the Northern Territory;

• 16 years or younger in South Australia.

The second statutory defense relates to situations in which the two people are close in age. For example, in Tasmania it is a defense if the child is 15 years of age and the accused person was not more than 5 years older than the child, or if the child was above 12 years of age and the accused person was not more than three years older than the child. In Victoria and the Australian Capital Territory, engaging in sexual behavior under the legal age can be defended if the defendant was not more than two years older, and in Western Australia not more than three years older, than the person against whom the offense is alleged to have been committed. In Victoria and Western Australia there is also a legal provision for defense if the accused can demonstrate they are lawfully married to the child.

11.11.2010

Consent

25.72 Sexual offenses against adults generally require the prosecution to prove that the complainant did not consent to the sexual conduct. This is a matter for the jury to determine by reference to the complainant’s actual state of mind at the time the sexual conduct occurred.

25.73 In adult sexual assault trials, it is common for the defendant to admit sexual activity but assert a belief that it was consensual. This is a matter for the jury to determine by reference to the defendant’s actual state of mind—and, in some jurisdictions, by reference to whether that state of mind was reasonable—at the time the sexual conduct occurred. In a family violence context, where the complainant and the defendant know each other, the issue of consent is complex.

25.74 The report of the National Council to Reduce Violence Against Women and their Children (Time for Action) noted variations across Australia in terms of:

• the definition of consent;

• the conditions or circumstances that are seen as negating consent;

• the way in which a defendant’s ‘honest belief’ in consent is dealt with; and

• the use of judicial directions as a way in which to inform and educate the jury about what amounts, or does not amount, to consent.[133]

Statutory definition of consent

25.75 Statutory definitions of consent seek to provide legal clarity, make clear that resistance and injury are not required to prove lack of consent, and educate the general community about ‘the boundaries of proscribed sexual behavior.[134] They may, however, be criticized as inflexible—because the dividing line between real consent and mere submission may be difficult to draw—and as introducing greater complexity.[135]

25.76 With the exception of the ACT,[136] every Australian jurisdiction has a statutory definition of consent based on one of the following formulations:

• free agreement;[137]

• free and voluntary agreement;[138] or

• consent freely and voluntarily given.[139]

25.77 The legislation of all jurisdictions—except Queensland—also specifically addresses the continuation of sexual intercourse after consent has been withdrawn.[140]

25.78 The Australian definitions accord with the recommendation of the United Nations Division for the Advancement of Women that legislation should approach consent as ‘unequivocal and voluntary agreement’ and that the accused should be required to prove the steps taken to ‘ascertain whether the complainant/survivor was consenting’.[141]

25.79 The United Kingdom definition of consent explicitly requires agreement: ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’.[142] This model was initially recommended by the NSW Criminal Law Review Division in 2007 and included in its consultation draft bill.[143]

Capacity to understand nature of the act

25.101 Most jurisdictions prescribe that there is no consent where the person who has agreed or submitted to the sexual act does not have the capacity to understand the sexual nature of the act.[185] The question of capacity is part of the Queensland definition of consent.[186]

Abuse of position of authority or trust

25.102 There is no consent when the accused person is in a position of authority or trust over the complainant in Queensland, Tasmania and the ACT.[187] There may be no consent where the accused has abused a ‘position of authority or trust’ in NSW.[188]

25.103 In addition, the Crimes Act 1900 (NSW) specifies that consent is not a defense to a range of sexual offenses occurring within relationships of authority or trust. For example, it is an offense for a person who is ‘responsible for the care’ of a person with a cognitive impairment to have sexual intercourse with that person, and consent is not a defense.[189]

Unlawful detention

25.104 In most jurisdictions a person unlawfully detained does not consent to sexual activity.[190]

Communicating consent

25.105 Tasmania is the only jurisdiction in which there is no consent in the absence of verbal or physical communication as to free agreement.[191] In other jurisdictions, such as Victoria, the implications of communicating consent are dealt with by directions to the jury.[192]

he proposal stated that, at a minimum, the non-exhaustive list of vitiating factors should include:

• lack of capacity to consent, including because a person is asleep or unconscious, or so affected by alcohol or other drugs as to be unable to consent;

• the actual use of force, threatened use of force against the complainant or another person, which need not involve physical violence or physical harm;

• unlawful detention;

• mistaken identity and mistakes as to the nature of the act (including mistakes generated by the fraud or deceit of the accused); and

• any position of authority or power, intimidation or coercive conduct.[193]

Stakeholders also suggested that the circumstances vitiating consent set out in the Commissions’ proposal should be expanded to include:

• economic abuse;[211]

• where consent is purported to be given by persons with a cognitive impairment to sexual activity with a carer;[212]

• fear of force or fear of harm of any type;[213]

• threats to harm animals;[214] and

• threats to damage property.[215]

Additional reading for listeners:

https://www.childabuseroyalcommission.gov.au/

https://www.youtube.com/watch?v=imr5ZiAY_ao

https://consentawareness.net/

HELP

1800 Respect - Call 1800 737 732 or visit www.1800respect.org.au

24/7 telephone and online crisis support, information and immediate referral to specialist counseling for anyone in Australia who has experienced or been impacted by sexual assault, or domestic or family violence.

Lifeline - Call 13 11 14 or visit www.lifeline.org.au 24 hour crisis support and suicide prevention 

Bravehearts Inc - 1800 272 831

Counseling and support for survivors, child protection advocacy

https://www.childhelp.org/hotline/ tel:18004224453

Sexual Assault Counseling Australia - 1800 211 028

National telephone counseling service for people who have experienced abuse. Face-to-face counseling is available in New South Wales.