Tuesday, 24 July 2018

Review of Consent Laws: An Update

As I’ve written previously (click here), the laws surrounding sexual consent in NSW have a patchy grey area. In NSW, when someone is on trial for sexual assault, the crown has to prove beyond a reasonable doubt that the complainant did not consent.

NSW laws are structured in a way that puts the onus of proof on the victim: the victim must prove they did not give consent. The best practice example of consent laws in Australia is said to be either Tasmania or Victoria, wherein (according to Anthony Whealy QC, a former Justice of the Supreme Court of NSW):

“the crown must prove that the complainant gave free agreement to sexual intercourse taking place ... and the judge is asked to direct the jury that if the complaint said or did nothing at the time of the sexual intercourse, that means she did not give her free agreement.”

As I’ve stated previously, this change switches the focus from the complainant to the accused. In this case, instead of focusing on the ways the complainant didn’t consent, the trial can focus on the ways the accused thought they had free agreement to the sexual intercourse taking place. The burden of proof, in a way, shifts from complainant to accused.

After Luke Lazarus was acquitted on retrial, NSW Attorney General Mark Speakman asked the Law Reform Commission to look at the whole question of consent in sexual assault trials. This high-profile case shone light onto these laws and how they can fail victims of sexual assault.

However, as Michaela Whitbourn has reported for the Sydney Morning Herald (link here), the NSW Bar Association (and also The NSW Law Society) has said in a submission to the Law Reform Commission that NSW should not change our laws to correlate with states like Tasmania. You can read their submission here. An excerpt of the NSW Bar Association submission is below:

Some support has been expressed for a Tasmanian provision which states that “a person does not freely agree to an act if the person … does not say or do anything to communicate consent”. In the view of the Association, this kind of provision illustrates some of the dangers in this area. First, it confuses the question of “free agreement” with the issue of communication of consent. There may be consent, indeed there may be “free agreement”, whether or not that state of mind is communicated and regardless of how it is communicated. Second, it appears that the real purpose behind this provision is a focus on the state of mind of the accused, not the state of mind of the complainant. The goal may be to prevent an accused from avoiding criminal responsibility where consent has not been communicated, that is, to impose a duty to inquire regarding consent where it has not been communicated in some way. It is not appropriate to seek to advance that goal by means of a definition of consent that may have the consequence that what is real consent is defined not to be consent. Third, the concept of communicating consent is nebulous. Consent is communicated in different ways and there will be a comparable lack of uniformity in the way that what is communicated will be understood. Signals about consent, or lack of consent, are susceptible to misinterpretation. Such a provision should not be adopted in NSW.” (emphasis mine)

Sex involves at least two people. As a society, we’ve decided both parties must be of legal age and must consent to sexual encounters. If you asked an average person to define a sexual encounter where one of the parties didn’t consent to sexual intercourse, they would probably define this as rape/sexual assault.

This submission reads to me (and forgive me, I am not a lawyer) that there may be free agreement without verbal or physical cues, and I do agree with that. However, if the law were changed this free agreement would still exist, but there would be an added safeguard of parties having to verbally check in (or otherwise) to ensure that the free agreement existed.

Why do I think we need that safeguard? Because we know most people freeze in a sexual assault, and they do not fight back.
Stat according to victimfocus.org.uk

Here is more data to back that up, from a resource produced by the Australian Institute of Family Studies on behalf of Victoria Police. (Link.)

In the section of the report, focused on debunking myths about sexual crime and resistance:

  • In a study of 317 rape reports in Minnesota, 81% of victims did not actively resist at some point… (Carr et al., 2014)
  • Victims may be more likely to freeze and cooperate rather than fight off the offender (Gerber, Corman, & Suresh, 2009; Tidmarsh et al., 2012). 
  • Women with previous sexual victimisation histories tend to engage in less direct verbal resistance, such as turning cold or freezing during an offence (Gidycz et al., 2008).

If, as in the Lazarus trial, there was reasonable expectation of consent because the victim was in a frozen state – then the law will fail victims of sexual assault again in future. Because most victims of sexual assault do what Mullins did: they freeze. And the way this law is worded predominantly disadvantages women, because victims of sexual assault are predominantly women. This law advantages men, because men are predominantly the perpetrators of sexual violence.

The Sydney Morning Herald reports (link) the NSW Police Association said: “the criminal justice system fails survivors of sexual assault” and consent laws should be amended to require people to “actively ensure” their partners were consenting to sex.”

Is it really too much to ask for sexual partners to check in with one another? The police don’t seem to think so, and I’m with them on this one.

By: Tee Linden

Tuesday, 17 July 2018

Healing After an Abusive Relationship

Trigger Warning: The following piece is a personal account and includes mentions of assault, self-harm and trauma.

Sociologist Michael Kimmel says “feminism expects a man to be ethical, emotionally present and accountable to his values in his actions with women – as well as other men.  Feminism loves men enough to expect them to act more honourably and actually believes them capable of doing so”.

If you feel let down by this statement, I don’t blame you.  If you feel your experiences preclude you from maintaining faith that men can be and are capable of being “ethical, emotionally present and accountable”, you are not alone.


I want to tell you one particular story of mine, one I am just now gaining the courage to talk about.  I was in a toxic and abusive relationship for over four years.  Even though I identify as a survivor, I am also struggling to effectively apportion responsibility and blame, to put back together my self-esteem, and learn to trust myself again.  

About seven years ago I moved away from the city where my family lived, where I had forged wonderful childhood friends and where I completed my tertiary education.  I moved to gain the necessary experience within my chosen career.  I moved for reasons more complex than that too, for a fresh start – I have had mental health issues since I was a child that bled into identity as a teenager and a young adult.

I was extremely anxious and a perfectionist with unrelenting standards of personal performance.   As a teenager, I battled with depression but it wasn’t until I was 17 that my world fell apart.  That is a different story, one for another day.  But, I want you, the reader, to know that as a romantic proposition I have always considered myself to be too complicated and complex to be loveable.  In ways I have behaved to reinforce this belief; in other ways I was treated as such.  

Back to the new city I’d moved to - as is wont to happen, old patterns crept in as I faced my loneliness and the realities of interning (for no money) and having to work in a bar to pay my rent.  I retreated into myself, into a bottle of red wine and into the internet.  When a face from my past appeared on my Facebook feed, a face who had loved me in that innocent way teenagers do and who had loved me before I had identified myself as broken.  I thought, ‘this is it – here is the love I have been waiting for’; the love I might not feel I deserved but that I would chase anyway.

I am a romantic and I am delusional.  Romantic in the sense that I want that feeling of mystery and excitement that (romantic) love promises; the kind that lifts you from the drudgery of everyday life.  I am delusional insofar as my learned experiences of romantic love has meant that I have come to expect a degree of intensity, obsession, chaos and drama that is at best, unhealthy, and at worst, toxic.  My idea of love became very twisted – it needed to be expansive, complex, intense, and obsessive in order for it to be real. 

So, five and a bit years ago, I gave up a job that was on the cusp of giving me everything I had doggedly worked for (interning and working in a bar at night) – the job that held so much promise and with people who had an unending faith in my abilities and potential – I left that and moved to a new country, to a new city to be with this man, M.  

I am a restless soul, thoughtful and pensive, melancholic and impulsive.  I have been a risk taker since I was a small child – in many ways I can be absolutely fearless.  But I am also extremely anxious and prone to shame – the shame is so pervasive that it makes me incapable of forward movement.  I get stuck and cannot move.  It is the emotional cancer that has eaten me from the inside out, eroding my confidence and sense of self, that facing the world, facing consequence, is simply too hard.  But at times it yells at me – run!

I didn’t see it as running away, but I was.  I was running as fast as I could from the person I had become and the shame that had been my constant companion for so many years.  And it was easy to run, I had done it before – 

I ran away to America for similar reasons, for a handsome stranger I had met just once in a lonely hostel in Argentina (stick with this blog, I have a lot of great stories).

Where I should have sent myself to intensive therapy – I packed my bags and got on a flight to Melbourne and then into M’s car.  I cracked a bottle of duty free vodka along the Tullamarine freeway with the window’s down, in the summer heat, I thought to myself - ‘this is so bohemian and wild and free’.  This, I said to myself, this would work out.  

Happiness, which is not based on contentment but on a ‘feeling’ of being high and giddy, is a fleeting anchor on which to hold - especially when you are effectively broke, jobless, living with a stranger and struggling to find your feet.  
The deep depression hit quickly. I ignored the holes that M had punched into the walls of his home out of frustration and anger at a previous relationship’s breakdown.  I ignored the growing resentment he felt toward me because I didn’t match the idea he had in his head of me.  At that point we were still feeling each other out – our discontentment was understandable and manageable.  But it began to get less and less so, at least for me. 


The abuse began in stealth … I was broken, I was mentally unwell, I was needy and reliant … M began to list all the way in which I was the problem.

So, when M said he would support me to get sober by teetotalling with me – I thought, ‘this, this is love.  I have finally found it.  Someone who will accept me, who understands me’. I thought.  But sobriety didn’t fix me, because alcohol and its use in my life has always been a symptom not a cause of feelings of inadequacy.  Sure, it exacerbated things, created drama and brought with it its inevitable shame spiral.  But sober, you are left with the rawness that alcohol had dulled for so many years.  I sat alone with this and my anxiety skyrocketed, my weight plummeted and I reached out with both hands to the man who said he would love me and asked – please love this version too, please see I am struggling, please acknowledge this and please help me. 

I let myself be completely vulnerable to M and asked to be loved regardless of my flaws – real and imagined.  But he didn’t love my flaws or know how to – it became very clear that stopping drinking did not turn me into his fantasy woman and he was clearly disappointed.
He didn’t want to learn about my pain.  Didn’t or couldn’t understand why I would beat myself, cut and punish myself for everything I thought were my failures - at work, at home, with friends, with family. The grief and trauma that I had dampened for years was now on glorious show.

I retreated into myself.

When M first assaulted me we were both sober, I rang the police.  We were separated and I chose not make a complaint.  The next time he assaulted me we were both sober, I was left with a two black eyes, bruising around my neck after being choked in the shower and scratches across my arms after being restrained.  I did not ring the police.  I did not make a complaint. This also marked the end of my 1.5 years of sobriety.  

I cannot list all the times I was yelled at, verbally abused, physically stood over, or pinned to my bed by M; nor am I going to list the further assaults that occurred.  It is too easy to view complex human relationships in black and white terms, and I am still coming to grips with my entitlement to be angry and distressed by the events that occurred within this relationship and what degree I have been culpable – not for the assaults but for my own anger and emotional instability that do not a happy relationship make.

It took multiple attempts to disentangle myself from the relationship and in many ways I still identify M as the love of my life.  

Now, I am living in the aftermath and fall-out.  I will talk more about this in another post but at the moment my sole purpose in life is to heal, let go, forgive, and rediscover myself and use my new-found identify to anchor and trust again.  

One thing I know is how damn hard it is to trust yourself when you have (a) made your own mistakes and (b) been gaslit for so many years you question your own ability to be reasonable and accountable.  I took on the full responsibility for the relationship breaking down – if you asked M what went wrong it would be entirely and unequivocally my fault.  
This burns me to my very core – it is the thing that presents as the biggest roadblock to my recovery.  Because, I know that I will not get any acceptance of responsibility from M, nor an apology.  

I have to do my healing alone, like many women do, and when you don’t like yourself, this can be a very daunting task.

As I embark on this journey, I want to say the things that are working for me and I hope to share more as I get further along my path:

1. Talk.  But if you are not ready to shout out your trauma from the rooftops then be careful of who you talk to.  Some people who you love can respond in ways that are unhelpful and can undo the work you’ve done.  Professionals are great but so too is that one, trusted friend.

2. Be totally frank, fearless and honest about everything.  This is hard for me.  I have hid my weaknesses, flaws and ‘bad’ bits from people for years.  But people are astute – they already know, so you might as well own it.  Owning up to everything can help reduce its impact, as there is always a person out there who can identify with what you are going through. Fearlessness begets fearlessness – that next leap of faith becomes easier.

3. Listen to your instincts – this will help to trust yourself again.  The two times this year I have not followed my instinctual reaction to something (you know that gut feeling), things have turned out in ways that have set me back financially, emotionally, and at work.  Practicing listening to your gut, or inner voice, will help you to learn to trust yourself again. 

4. An all-or-nothing approach is doomed to fail.  I have been one of those people who wants to change, creates an elaborate and detailed plan, then fails at the first hurdle because it’s too much, too soon, too hard.  This just gets you stuck in the blame and shame cycle again, which is what you’re trying to escape from.  Adopt a modulated approach – start with small, manageable changes then build on them.  

5. Medication works (for me).  I have finally, FINALLY stuck to taking my medication for 7 consecutive months now.  I was always someone who would start something, hate the side-effects, not feel the effect quick enough, give up and then go back for something new.  Needless to say, this has created a sense of distrust for GPs who prescribe me such medication – I set myself as a science experiment then complained about doing so.  It is trial and error, it doesn’t work for everyone but there is no shame in needing medication for the short or long term.  

6. Exercise.  I walk everywhere – I try to walk at least 10,000 steps every day.  Today, I start a 6 week dance class.  I am taking things slowly, building on what I have worked on previously (see point 4 about adopting a modulated approach).  Elle Woods was right "exercise gives you endorphins.  Endorphins make you happy. Happy people just don't shoot their husbands, they just don't."
And remember, you (as I do) deserve to find love that doesn’t expect or require you to convince them you are loveable or that their idea of you is somehow more valid than your own.  

If you feel your experiences preclude you from maintaining your feminist faith in ‘ethical, emotionally present and accountable’ men, you are not alone.  I stand with you but I am also willing to rebuild that faith over time.  

By: Rachael Thurston

Wednesday, 11 July 2018

Andrew Nolch and Anti-feminists

Andrew Nolch is the man arrested for defacing Eurydice Dixon’s memorial. This caused a lot of pain, and a lot of anger. And Nolch has told The Age that he defaced the memorial as a sort of protest, in his words:
“I was upset, and I want to make this clear, this was not a personal attack at all...this was purely an attack on feminism, on mainstream media for hijacking a vaccine-causing issue and turning it into a men are bad, women’s rights issue”
As the autism vaccine “theory” has been debunked so many times it’s been turned into a meme, I’m just going to focus on Notch’s anti-feminist angle, and the idea that he was angry about how men are being portrayed in the media.

His statement made me wonder which type of feminism Nolch was attacking. Was it liberal feminism? Eco-feminism? Radical feminism? I mean, these can have differing aims, sometimes at odds with one another (see: the feminist discourse around porn) so I wonder which he was protesting? 

Ok, I know I’m being facetious, but when I talk to anti-feminists about why they hate feminism (hate is a strong word but one aptly describing the act of defacing the memorial of a murder victim in my opinion) I get some confused responses. They don’t seem to understand feminists aren’t a homogenous group.
Patriarchy doesn’t exist, is a common answer, and there is no wage gap. Perfectly fine.  You don’t have to believe in the wage gap. There’s copious evidence that it exists in various ways, but if you believe feminists have a stranglehold on the government (another theory I hear) then you probably wouldn’t believe the evidence anyway. You don’t have to believe what I believe. I believe the earth is a globe, that astronauts have actually been into space, and there’s demonstrable evidence for this, but you don’t have to believe that either.  
Screenshot of an article in The Age

Another common response is well if you believe in equality, you should be a humanist, you should care for men and women. I’d like to wryly point out some feminists don’t want equality within the status quo, they’d like to smash the current system and demand liberation from it, but I understand what’s being said. Why focus on women? Why not focus on programs for men as well, why not talk about problems that men have? Well besides the fact many feminists do all these things, my answer would be: why don’t you ask anti-feminists? The meninists? And Men’s Rights Activists? What are they doing? Why aren’t they doing their own work for men? If anti feminists/ Men’s Rights Activists care about supporting men, where were they with their support for Terry Crews, for example?

I don’t have a problem with men who want to solve problems for other men. I encourage them. For example, many men have discussed with me that there should be domestic violence shelters for men. If someone believes this should be a priority: they should go and start them. That’s what feminists did. We funded women-focused charities. A lot of us give our money, or our time or emotional labour, to help contribute to or provide previously-lacking services for women, or emotional labour to discuss issues that affect women and girls. Go do that for men. Feminists can help if they choose, but there’s no requirement for us to do this work, or any work for that matter. We choose what we’re going to focus on.

Funnily enough, I see many anti-feminists whose main purpose seems to be harassing feminists online. I’m not sure how that helps achieve anything. But then, I wouldn’t deface a murder victim’s memorial in protest, either.

In theory, I agree with Chimamanda: that we should all be feminists. But not in practice. To me, feminism is linked to activism and I don’t think you can force anyone to be an activist. You don’t have to call yourself a feminist. I’m not trying to convert anyone. No one has to believe what I believe.

Nolch defaced Eurydice Dixon’s memorial in an act of protest against feminism, against what I would call a changing tide in terms of male culpability for their actions. In reality, all he’s done is bolster a longstanding feminist concept (common throughout the differing theories): that males in our society can be socialised to act entitled and aggressive, to the detriment of females who are socialised to submit to it.

And it makes me wonder why if you didn’t like men looking bad in the media, you would make a choice to be a man who defaces a murder victim’s memorial? I doubt many people are going to read this as a positive example of manhood…
 By: Tee Linden

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