Just Because Someone’s Having Sex With You Doesn’t Mean They’ve Consented

This week, the 2013 rape trial in which 18-year-old Saxon Mullins accused 21-year-old Luke Lazarus of rape after they engaged in anal sex outside of a Kings Cross nightclub has been brought back to the media forefront, after Saxon spoke to Four Corners for the first time about the trial.

It’s a harrowing story – Saxon visited Kings Cross nightclub Soho in 2013. While there, she met Luke Lazarus. The two left the club together, began kissing, and that’s when things took a turn.

According to Saxon, Lazarus’ demeanour changed.

“I didn’t know him. And you know, the few things he said to me before we went outside were just nice, calm, normal things and then all of a sudden, after I tried to leave it was, ‘Put your fucking hands on the wall’, it wasn’t, ‘No, please, stay with me’.”

Saxon explains that she and Lazarus then engaged in anal sex.

“I just did it. At that point I was just kind of in autopilot a little bit. I just wanted to go. And this was kind of the quickest way I thought I could leave. I just thought, ‘Just do what he says and then you can go’. He had anal sex with me. It was pretty painful. And I was just trying to like, I know it doesn’t make sense, but block it out. Like just wait till it was over.”

Following this, she went to the police, and in August 2013 Lazarus was charged with having sexual intercourse with Saxon Mullins without her consent. He was eventually convicted.

However, 11 months into his prison sentence, Lazarus was released following a successful appeal in which the judge on Lazarus’ appeal case, Robyn Tupman, took a different view of the events.

“I stress that I do not accept that the complainant, by her actions, herself meant to consent to sexual intercourse and in her own mind was not consenting to sexual intercourse. Whether or not she consented is but one matter. Whether or not the accused knew that she was not consenting is another.”

Lazarus was essentially acquitted because Tupman felt that Lazarus had reasonable grounds to believe Saxon was consenting. The reasonable grounds? Not running, not fighting back, and her confusion over whether she told him to “stop” or not.

“She did not take any physical action to move away from the intercourse or attempted intercourse,” Tupman said.

To me, this decision muddies the waters even more when it comes to how we view consent. While most of us would agree consent is more than a “yes” or a “no”, we still seem to struggle in understanding where we cross the line – and we still seem to label sexual acts as consensual because the victim didn’t put up a fight, verbally or physically.

The excuse that someone “let” us have sex with them and therefore they consented is extremely flawed. To let go of that mentality, men need to understand something the way many victims have continually acted for generations – frozen, or reacted passively, as a psychological method of protecting themselves.

As a woman, I can tell you right now that I have passively accepted behaviour from men that I didn’t want, even though everything in me wanted to run. I am lucky – I’ve never experienced rape. But I’ve definitely been in situations in which a man has made a forceful advance on me and/or sexually assaulted me (grabbed my ass, my boob, initiated sex acts without a “is this OK” etc). I would say most women have.

In those situations, my instinct has been to wait for the experience to be over. If it’s particularly aggressive, I’ve often frozen up in shock. Have I at times deflected advances or spoken up mid-assault? Absolutely. But if I’m honest, most times my response has been to freeze or turn passive. I can’t tell you how many times I’ve stood stock-still when a man has squeezed my ass or lifted my skirt in a club. How many times I’ve “gone along” with something I’d never done in the bedroom because it had already begun without any check-in.

I’ve spoken to friends and other women about this – many of us have this reaction to situations that shock us or elicit fear in us. When it comes to men and sex, our first move is to be passive, and the reason we instinctually go there is fear.

It’s known as the “freeze” response, and Four Corners spoke to Annie Cossins, a professor of law and criminology at the University of NSW, about it.

“It’s well-known by psychiatrists and psychologists — that there’s actually three responses to fear: there’s fight, flight and freeze. A freeze response usually occurs when the person can see that fight and flight aren’t options for them. [A person’s] ability to have conscious control over their body disappears and they do what they are told to do.”

I believe that many men go ahead with sex and sexual acts knowing their sexual partner is right in the middle of a freeze response. I think they lean on the excuse that “she didn’t say no” or “she went along with it”, all the while being aware that the person’s body language and the entire feel of the experience is of non-consent.

Because you can’t tell me that someone being non-responsive feels like a “yes”. That someone who struggles and then goes limp feels like a “yes”. That someone who refuses to look you in the eye feels like a “yes”. That someone crying in the middle of sex while you continue on, aware of it and ignoring it, feels like a “yes”.

Our concept of consent needs to move beyond “she agreed” or “she didn’t physically reject it”. We need to be honest with ourselves and acknowledge when our partner or the person we’re pursuing is not reciprocating, when the vibe is completely off, when we’ve essentially bullied or scared someone into an act they did not want to do. We need to recognise a freeze response.

It’s not enough to get a verbal “yes”, and it’s not enough to get emotionless physical cues – because victims will often passively allow things to occur to their bodies out of fear. But while someone may physically be allowing someone to interact sexually with them, if they are in a freeze response they will never, ever be giving anyone the sense they want to be doing the things they are doing. Their body language will be screaming that they aren’t comfortable or consenting – think a tense demeanour, a slackness, no enthusiasm, crying, shivering, no emotion. No one should be allowed to take advantage of that passivity. “They went along with it” is not a green light to fuck someone, to try a new sex act that wasn’t discussed, to put your hands on a woman’s body.

We need to do better.