The debate about sexual assault following the incident in which Matthew Johns and other footballers were involved is still confined by a very old and tired framework. The discussion about whether the incident constituted a wrong to "Clare" has mostly revolved around the question of whether she agreed in some sense to the acts, or whether her complaint to Four Corners merely registered regret after the fact.
That the discussion in Australia has remained within such a framework is cause for concern. The reluctance of many people to recognise sexual abuse in the publicly available accounts of the Auckland incident confirms the tenacious hold on the collective imagination of a version of sexual assault that only infrequently corresponds to what is known of patterns of rape and abuse.
Try this thought experiment: what picture comes into your mind when you read the word "rape"? A probably deranged stranger jumping from behind a bush to attack a woman walking alone on a dark street? The further an incident of sexual assault deviates from this kind of picture, the more difficult it is for the public to credit this as abuse or violation.
Part of the reason for the tenacity of the stranger rape picture is that discussions of sexual assault in Australia focus on very narrow questions of consent. There have been decisive shifts in international discussions about sexual violation that have largely gone unnoticed in Australian media and popular discourse, and even in academic circles.
In international discussions, the focus is shifting away from narrow questions of consent to instead foreground the dignity and integrity of the human person. The protection of all people against impairments of dignity or invasions of personal integrity is not reflected at every level of Australian law, public policy or popular culture. It is around the concept of autonomy that the protection of sexual dignity and integrity needs to be organised.
What makes an act rape? It can be a sexual act without consent, or an act where the consent is produced by actual force, by the threat of force to the victim, or by a threat to harm a third party. An act can also be defined as rape if it takes place under circumstances which render the victim unable to make an informed and compelling refusal. What these considerations mean is that if autonomy is to be the focus, our attention needs to be directed not only to the presence of agreement, but also to the circumstances in which agreement to actions is formed and communicated.
One aspect of those circumstances is the vulnerability of the victim. By vulnerability we do not mean inherent or feminine weakness, rather the term refers to those who have been made or rendered vulnerable by the circumstances in which they place themselves or in which they are placed.
The elevated status of these football "heroes" has led to public excusals of their acts of sexual misconduct, pity for Matthew Johns, and slurs on Clare’s reputation. However, it is this very same heroic status that should lead us to recognise the obviously unequal starting position that formed Clare’s vulnerability. Johns continues to insist that she was consenting. However, this "consent" is only relevant to the point that she was a free and equal individual to give that consent, at all stages of the sexual acts.
We should recognise in this situation the foundations of inequality before any negotiations between Clare and the footballers might have begun: not only the difference in number, but the difference in age and social status, the fact that they were famed footballers, and in the words of the hotel owner, "a great bunch of guys" patronising the bar where Clare worked. Clare and the footballers were by no means on an equal footing in the circumstances where agreement to the acts was supposedly formed.
Criminal and civil laws, and their interpretation, would look quite different if we were to think about sexual assault in accordance with the notion of autonomy, if we were to see the wrong of sexual assault as lying in the violation of the autonomy of the person. One of the other important shifts that would take place is that we would not count passivity, silence or ambivalence as consent.
One way to uphold sexual autonomy is to place value on the communication of consent. For example, rather than asking Johns whether he honestly believed that Clare was consenting, we might inquire as to the efforts he and others made to ascertain mutuality of desire. That is, to use the words of American scholar Stephen Schulhofer in his 1998 book Unwanted Sex: The Culture of Intimidation and the Failure of Law, the question might be: what efforts were made to ensure that there was "an affirmative indication of actual willingness" on the part of all of those involved, to all of the actions involved.
What is missing from the public accounts of the Johns case is any evidence of the communication of affirmative consent by Clare. Of course, in some respects, any determination as to whether this was a consensual sexual act or a case of "rape" must be heavily influenced by the dearth of evidence in the public domain about what actually took place. The culture of silence permeating the football fraternity has left us with two conflicting stories, as is frequently the case in allegations of sexual assault.
According to Clare’s story, the situation in which she communicated willingness to some acts with some men changed, as did the respect for her sexual autonomy. There were, however, more than two witnesses to the event, although all except Johns have remained notably silent for reasons that go beyond protecting their own reputations to protecting the mateship of the sporting fraternity ruled by their own laws.
Matthew Johns claims of the Auckland incident, "At no point did [Clare] object at any stage to what was going on". But a mere lack of objection is not enough. To count as autonomous consent, agreement to sexual acts must not only be uncoerced by force and fraud, but also uncoerced by a background of intimidation, aggressiveness, abuse of trust or unequal power relations. And regard for the autonomy of others requires both a mutuality of desire, and its explicit communication.
What has been badly termed "group sex" — in this case, sexual acts between one woman and an unknown number of men — is yet another example of the convergence of football and sexual violence. The sensational aspects of this case about our "fallen football heroes" have distracted us from the central questions of whether the woman could in fact have given her autonomous consent under the circumstances, and how each and everyone of the men involved discerned this consent.
We all know that stranger rape is rape. But the reckless indifference as to mutuality that is clear from accounts of the Johns incident, together with the negligence as to ensuring explicit communication of any mutuality, also constitutes a violation in the contempt that it shows for the autonomy of others.
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