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Consent for sale

13/10/2018

I must be insecure about my opinions or something. There’s some things I don’t feel comfortable talking about unless my position and what I imagine to be my qualifications are on the table from the outset. This is one of those things. No, this is two of those things.

In the early 80s I shared an inner Sydney flat with a steadily changing group of sex workers. Sex work was still illegal in NSW and all the brothels in and around Kings Cross were run by Abe Saffron, Big Jim Anderson and Abe’s daughter, Melissa, while street work was controlled by corrupt police. ‘Corrupt police’ was a tautology, partly because of their lucrative oversight of the sex trade. Since then I’ve been a supporter of sex workers’ rights and the decriminalisation of sex work, a stance I think has been amply vindicated by the outstanding success of two decades of decriminalisation in this state.

In the late 90s and early 2000s I was part of a group trying to find community based responses to sexual assault that didn’t involve the legal system. While we respected the rights of those affected to turn to police, courts and prisons we knew from our criminal justice work they often made things worse for victims, offenders and the community as a whole. So we tried to apply our theoretical knowledge of restorative justice programs in Australia and overseas to the all-too-frequent sex offences committed within the Sydney progressive activist community.

At the time I was acting as an advocate for convicted sex offenders in the NSW prison system and as a consultant in sex offence trials and sentencing submissions. I was delivering conference presentations on the unimpressive and disturbing outcomes of prison based sex offender rehabilitation programs and giving guest lectures on sex offending at Sydney universities. I sure knew how to talk about it and thought I was ready to start listening. It didn’t go so well. Outcomes were mixed, though probably better than could have been expected from the justice system, but the emotional toll on participants was high. It soon collapsed in a pyre of burn-outs. What I brought away from it – apart from a load of vicarious trauma – was a far more nuanced notion of what constituted sexual consent and perhaps more understanding than I was ready for of the impact breaching it can have on both victims and offenders.

So to get to the point. About consent. And sex work.

A Brisbane sex worker has recently rethought her insistence that a client who cheated her had also raped her by fraudulently obtaining consent in exchange for a payment that didn’t eventuate. As is so often the case with women in general and sex workers in particular, her views and experiences are being largely ignored in a barrage of responses from various entrenched ideological positions. In what some may see as an example of strange bedfellows, feminist academics and sex worker advocates have aligned in furious agreement that fraudulently obtained consent is no consent at all and any resultant sexual activity is therefore rape.

I think she’s right and they’re wrong.

Some may see this as similar to the case in Israel in which a Jewish woman brought rape charges against an Arab man who had obtained consent while supposedly pretending to be a fellow Jew. Even setting the racism aside, I’d disagree. If misrepresenting yourself to potential sexual partners is a criminal offence a lot of us are in trouble. Wouldn’t that make false breasts probable cause?

I think it arises from a transactional view of sex not so different from the old ‘break it and you’ve bought it’ notion of female chastity that once drove so many into loveless marriages; that women only agree to sex in exchange for something else. I know there’s plenty of people of all political persuasions who tacitly or explicitly endorse that outlook but I’m enough of a romantic to believe they’re in a minority. And though I can appreciate that being cheated out of a quid pro quo might be rape to them and should be treated as such on a personal level, I don’t think public policy or criminal law should be enforcing it as a social norm. When sex is a commodity rape becomes property crime.

But what’s the point really? There’s never been much sign of rationality or humanity in the way society deals with breaches of accepted sexual behaviour and nothing I can blog is gonna change that. Or was it open, informed public debate that finally ended sex work criminalisation in NSW?

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