Hell yes? Enthusiastic consent as a legal standard for sexual consent

Abstract

Australian laws around sexual consent have recently begun to shift towards ‘yes mean yes’ standards of affirmative consent. This article examines whether Australian laws should go further and adopt ‘enthusiastic yes’ standards of enthusiastic consent. This article begins by explaining enthusiastic consent and highlighting its strengths as a model of consent, before outlining both the practical and conceptual objections to its use within law. Ultimately, this article finds that whilst enthusiastic consent should not be used as a legal standard for sexual consent in Australia, it nonetheless remains a valuable tool for thinking about sexual consent in non-legal areas such as ethics and education.

In recent years, consent has come both to frame and to figure prominently within discussions of sex. In Australia, this so-called ‘Consent Moment’ ¹ is apparent in the increasing amount of attention being paid to sexual consent within academic, advocacy, education, governmental and legal work. This attention has led to a number of key developments, such as the 2023 publication of The Commonwealth Consent Policy Framework, ² and, from 2000 onwards, a rolling series of legal inquiries into sexual offences and the role played by consent. ³ It has been made abundantly clear that historical ‘no means no’ standards of consent are inappropriate and harmful, and Australian laws ‘have begun to shift’ towards ‘yes means yes’ standards of affirmative consent instead. ⁴ In practical terms this has meant moving away from legal standards that allow for silence or unclear communication of non-consent to potentially constitute consent, to enable a defence of mistaken belief about consent, or to prevent subject fault from being proven. ⁵ It has also meant moving towards legal standards that may require affirmative communication of consent, may require a person to take steps to ascertain consent before they can hold a reasonable belief about consent, or that may negate the possibility of consent in certain situations where there is no communication (such as during sleep or unconsciousness). ⁶ While affirmative consent may have limitations, ⁷ it nonetheless seems to have become the lodestar guiding the development of Australian law in this area.

The legal shift towards affirmative consent is welcome but may not go far enough. In discussions around sexual consent, ‘[t]alk of enthusiastic consent is increasingly common’. ⁸ Enthusiastic consent builds on ‘yes means yes’ standards of affirmative consent by requiring that any such ‘yes’ also be enthusiastic. As Pru Goward, then New South Wales (NSW) Minister for the Prevention of Domestic Violence and Sexual Assault, framed it in 2018: ‘[i]f it's not an enthusiastic “yes”, then it’s a “no”’. ⁹ In Australia, the idea that sexual consent should not only be affirmatively communicated but also enthusiastic has appeared within educational material produced by advocacy bodies, ¹⁰ media reporting on sexual consent, ¹¹ awareness-raising material published or funded by the government, ¹² and resources provided by universities to tertiary students. ¹³ Sometimes this material presents enthusiasm as a desirable feature of consent and sometimes it presents enthusiasm as a prerequisite for consent to exist at all. However, despite the ubiquity of the concept of enthusiasm within discussions of sexual consent in Australia, enthusiastic consent has received an unenthusiastic reception from Australian law. No Australian jurisdiction requires a person to enthusiastically consent in order to give legally effective consent to sex. Indeed, Australia’s recent legal inquiries into sexual offences (mentioned above) barely addressed enthusiastic consent, typically mentioning it only in passing if at all. The exception here is the 2023 report by the Law Reform Commission of Western Australia, which explicitly rejected enthusiastic consent as a potential legal standard for sexual consent. ¹⁴

This article engages with the question of whether Australian law is justified in refusing to adopt enthusiastic consent as a legal standard for sexual consent. The article begins by explaining enthusiastic consent, highlighting how it humanises consent by centring desire and intersubjective awareness, and how it safeguards against the (gendered) wrongs of unwanted but consensual sex. The article then outlines key practical objections to the use of enthusiastic consent within criminal law, namely its potential imprecision and over-criminalisation, before developing the conceptual critique that enthusiastic consent’s focus on sexual desire fails to reflect the rich and diverse array of human sexual motivations. Ultimately, this article argues that Australian law is indeed justified in refusing to adopt enthusiastic consent as a legal standard for sexual consent but that enthusiastic consent could nonetheless still play an important role in non-legal areas such as ethical thinking and education around sex.

Enthusiastic consent explained

Because enthusiastic consent is used in different ways by different people, some clarification of this concept is a necessary preliminary step. Sometimes enthusiastic consent is used to indicate a standard of sexual consent that requires affirmative communication of a ‘yes’. ¹⁵ However, affirmative consent is the more well-entrenched and popular name for this standard of sexual consent already, so if this is all that enthusiastic consent means then it is redundant. ¹⁶ Enthusiastic consent is more uniquely used to indicate a standard of sexual consent that requires something more than just the affirmative communication of a ‘yes’. This additional requirement is ‘that all persons should be enthusiastic about the sexual interaction and want to be there’, and fulfilling it means that any affirmative communications of consent should also reflect ‘a positive expression of desire and enthusiasm for sex’. ¹⁷ This ‘higher standard’ is ‘sometimes described as not just a “yes” but a “hell yes”’, ¹⁸ and is the particular notion of enthusiastic consent addressed in this article.

Another point of clarification relates to the nature of the enthusiasm required by enthusiastic consent. As Dougherty has identified, one way to understand enthusiasm is as a kind of ‘content-independent’ eagerness, that is we could say that a person is enthusiastic about something simply if they have an attitude of eagerness towards that thing regardless of what it is and why they are eager. ¹⁹ If this is what enthusiastic consent means then enthusiastic consent standards could be met by someone who is ‘enthusiastic about engaging in sex without being enthusiastic about sex itself’, such as where their enthusiasm derives from getting paid. ²⁰ However, for many commentators, enthusiastic consent requires enthusiasm that derives from a specific motivation: sexual desire. In the landmark book Yes Means Yes: Visions of Female Sexual Power and a World Without Rape (the 2008 first edition of which is credited as playing a key role in popularising enthusiastic consent), ²¹ Kulwicki explains enthusiastic consent as comprising ‘the genuine desire for sexual pleasure and the expression of that desire’, noting that these elements together ‘should be an accepted standard’ for how we think about consent. ²² The notion of enthusiasm, then, is a ‘proxy for desire’ and the concept of enthusiastic consent functions to ‘connec[t] desire with consent’. ²³ In this way, enthusiastic consent reflects a model of sexual consent that is ‘hedonisti[c]’, ‘carnal’ and ‘sybaritic’. ²⁴ It is this particular notion of sexually desirous enthusiasm that is addressed in this article.

There are good reasons for advocating for a standard of sexual consent that requires an affirmative communication of a ‘yes’ accompanied by sexual desire. As will be addressed further below, sexual desire is a primary motivation for many people when it comes to engaging in sex. However, factors such as sexual desire and sexual pleasure are not adequately addressed in programs that teach sexual consent. ²⁵ Enthusiastic consent’s focus on these important factors humanises sexual consent discussions and sexual consent standards by reconnecting them with the subjective experience of sex that many people have. Enthusiastic consent also humanises sexual consent standards in another way, namely by requiring a stronger element of intersubjective awareness between sexual partners. The requirement for enthusiasm should help clarify communication and resolve any potential ‘ambiguities around consent’, as a partner’s willingness for sex should be more readily apparent when it is also enthusiastic. ²⁶ More than this, however, by looking out for enthusiasm and not just the bare presence of a ‘yes’, enthusiastic consent requires people to pay closer attention to their partner’s word choice, tone, body language, hesitancy and any other ‘subtle signals that a person may be sending out’ when it comes to communicating about sex and consent. ²⁷ Through this heightened focus on communication and connection between partners, enthusiastic consent promotes a more mutual model of sexual interactions.

Importantly, enthusiastic consent may also provide a stronger safeguard from certain sexual wrongs than affirmative consent. The issue here is that affirmative consent seems to enable people to ‘uncritically accept a “yes” as unfettered consent and to disregard the various reasons’ why someone might say ‘yes’ even though they do not want sex. ²⁸ Consensual but unwanted sex can occur for a number of reasons, some of which are concerning. A person may only say ‘yes’ to sex after being ‘nagged, pressured, intimidated, dominated, and made to feel obliged’ to do so by their partner, ²⁹ or because they know that the consequence of refusing to say ‘yes’ is that their partner will be angry, upset, rude or otherwise unpleasant to them. ³⁰ Although threats of violence and entirely overbearing efforts may constitute coercion or duress at law, lower-level forms of influence (especially when repeated over time) can undermine a person’s ability to refuse sex without legally vitiating their consent. Contextual factors can play a similar role in undermining consent. Feminist commentators have noted that cultural conditions of gender inequality weigh heavily on women’s decision-making around consent, leading many heterosexual women to say ‘yes’ to sex they do not want in order to please their partner, because they believe they have a duty/obligation to do so, or because gender-based sexual scripts leave them little room to refuse. ³¹ This gendered pressure has been identified as a form of ‘social coercion’ around sex. ³² In these ways, unwanted but consensual sex troubles the easy conflation of consensuality and lawfulness. Unlike affirmative consent, however, enthusiastic consent is concerned with more than just the presence of a ‘yes’. By requiring a person’s ‘yes’ to be eager and to be motivated by their own underlying sexual desire, enthusiastic consent does not accept a reluctant, begrudging or uncertain ‘yes’ as constituting valid consent. Enthusiastic consent thus offers protection from the (gendered) sexual wrongs that can occur even when a ‘yes’ has been communicated.

Adopting enthusiastic consent into law

In the same way that affirmative consent’s catchphrase of ‘“yes means yes” is a slogan, not a legal standard’, ³³ so too enthusiastic consent’s requirement for there to be a ‘hell yes’ is more motto than blueprint for legal reform. What would it actually look like for Australian law to adopt enthusiastic consent as the legal standard for sexual consent? Although a detailed proposal has not yet been put forward, the broad possibilities of how this could be done can still be roughly sketched. In relation to sexual offences, most Australian jurisdictions define consent as free and voluntary agreement. ³⁴ One way to legally operationalise enthusiastic consent would be to redefine consent as free, voluntary and enthusiastic agreement. ³⁵ Another way to legally operationalise enthusiastic consent would be to build on affirmative consent reforms by requiring people to take steps not only to ascertain that their partner consented to sexual activity but that their partner was enthusiastic about that sexual activity before they can hold a reasonable belief about consent. Regardless of the specifics of how exactly this could be done, any adoption of enthusiastic consent as a legal standard for sexual consent has to successfully navigate two significant practical issues.

First, enthusiastic consent needs to be capable of setting a legal standard that is sufficiently precise for criminal law. When seeking to determine whether a ‘yes’ is enthusiastic, we need to answer the precursor question: ‘how do we measure enthusiasm?’ ³⁶ There is more than a single means for expressing enthusiasm for sex and it may be the case that different people express their sexual enthusiasm in fundamentally different ways. As such, ‘it is not clear when consent would (or should) be considered enthusiastic’. ³⁷ Furthermore, as McArthur argues, ‘given the variety and complexity of intimate communication’ it may be hard for a legal fact-finder to clearly identify the threshold where a ‘yes’ crosses over into a ‘hell yes’ and to apply this in practice. ³⁸ How much eagerness, interest, passion, wanting, etc, is necessary for a ‘yes’ to be considered enthusiastic? Is it possible for a ‘yes’ to have varying degrees of enthusiasm and, if so, how much enthusiasm is required? A little? A moderate amount? A lot? Even if the enthusiasm of a particular ‘yes’ was clearly measured and was found to meet the appropriate threshold this would not seem to be enough. As discussed above, enthusiastic consent is not satisfied by the sheer presence of enthusiasm around sex but instead requires enthusiasm that derives specifically from sexual desire for the sex itself. Accordingly, even if an enthusiastic ‘yes’ was communicated, presumably the relevant legal fact-finder would also need to scrutinise the motivations behind it and confirm the presence of sexual desire before that enthusiastic ‘yes’ could constitute a legally effective ‘hell yes’. Similar to the issues around enthusiasm, issues would then arise around how sexual desire can be measured, how to encompass the diverse range of ways in which it can be expressed and how to set the threshold amount of sexual desire necessary for enthusiastic consent’s purposes. Given the issues with its potential application identified here, it seems that enthusiastic consent may simply ‘lac[k] the precision necessary to operate as a legal … standard.’ ³⁹

Second, enthusiastic consent needs to be capable of setting a legal standard that imposes an appropriate scope of criminal liability. As discussed above, consensual but unwanted sex can be problematic, particularly where it involves a reluctant, begrudging or uncertain ‘yes’. Unwanted but consensual sex does indeed sometimes seem to constitute ‘gray sex’ (that is, sex that falls within the murky area between rape and consensual sex). ⁴⁰ But should unwanted but consensual sex be criminalised by adopting enthusiastic consent as a legal standard for sexual consent? Commentators have issued strong reminders that the standards of lawful sex should not be confused for the standards of ethical sex or for notions of good sex. ⁴¹ The standards of lawful sex demarcate the least a person needs to do to avoid the imposition of criminal liability when engaging in sex. The presence of additional features beyond consent – features like pleasure, fun, desire, mutuality, etc – may be more reflective of aspirations for ideal sex than of the necessary conditions to avoid criminality. If enthusiasm exceeds what should be required to meet the ‘minimum threshold for legal sex’, ⁴² then it is an ideal more appropriately pursued elsewhere, such as through sex education and consent training programs. Indeed, the potential over-reach of legal standards based on enthusiastic consent becomes apparent when we think about what the criminalisation of consensual but unwanted sex would entail. Not all instances of consensual but unwanted sex are problematic. Think, for example, of the couple who are trying to conceive and who ‘force themselves to have sex very frequently in order to increase their odds of getting pregnant’, ⁴³ the person who offers to gift sex to their partner to celebrate them ‘receiv[ing] some important good news’ or to farewell them as they are soon ‘leaving for a trip’, ⁴⁴ or the person who hesitatingly agrees to try a new sexual activity, such as anal sex, because their partner suggested they give it a go. ⁴⁵ Sex in such situations may not be sexually desired nor enthusiastically consented to by all of the parties involved and yet such sex should not be criminal. The adoption of enthusiastic consent as a legal standard for sexual consent thus has the potential to ‘significantly expand the scope of the criminal law’ and to criminalise sex that is not ‘deserving of criminal sanction’. ⁴⁶ Although there may be an ‘understandable push to counteract the coercive societal forces that lead many, especially women, to consent to sex that is not fully desired’, ⁴⁷ using enthusiastic consent-based legal standards to pursue this purpose ‘risks overcriminalizing sex that is not clearly criminal’. ⁴⁸

Sexuality beyond enthusiasm

Although it seems unlikely, it may be possible for a hypothetical future law reform proposal to put forward an enthusiastic consent standard that is both sufficiently precise and appropriately scoped. But even if these practical issues could be overcome there is a further conceptual issue that militates against enthusiastic consent being adopted as a legal standard for sexual consent. The conceptual issue here is that enthusiastic consent’s focus on sexual desire as the only acceptable motivation for sex is unempirical as it fails to reflect the rich and varied reality of human sexual motivation. Sexological research into why humans have sex was a ‘little studied topic’ in the early 2000s. ⁴⁹ The lack of prior research in this area was possibly due to the belief that humans have sex for straightforward and obvious reasons, such as ‘to experience sexual pleasure, to relieve sexual tension, or to reproduce’, ⁵⁰ or because of an innate biological urge towards orgasm. ⁵¹ However, more contemporary research has demonstrated that human sexual motivation is far from simple.

Meston and Buss’ landmark 2007 article ‘Why Humans Have Sex’ is a useful starting point for unpacking human sexual motivation. ⁵² This research compiled a participant-generated list of 237 unique reasons for having sex, ranging from ‘I was “horny”’, to ‘I wanted to express my love for the person’, ‘I wanted to improve my sexual skills’, ‘Because of a bet’, ‘I wanted to make someone else jealous’, ‘I wanted to feel closer to God’ and ‘I wanted to relieve menstrual cramps’. ⁵³ When participants in this research were asked to endorse how frequently each of the 237 reasons led them to having sex, the most strongly endorsed reasons were those related to ‘attraction, pleasure, affection, love, romance, emotional closeness, arousal, the desire to please, adventure, excitement, experience, connection, celebration, curiosity, and opportunity’. ⁵⁴ In developing a theoretical framework that encapsulated both these and other more frequently endorsed reasons, Meston and Buss proposed four core categories of human sexual motivations based variously around physical factors (such as pleasure), goal attainment factors (such as improving social standing), emotional factors (such as love), and insecurity factors (such as raising self-esteem). ⁵⁵ While sexual desire is a physical factor that is frequently endorsed by many segments of the population, ⁵⁶ it is only a small part of the much bigger picture of human sexual motivation. The empirical literature on human sexual motivation tells us that human beings ‘choose to engage in sexual activities for a plethora of reasons’ and do so with a ‘myriad of motives’. ⁵⁷

Sexological research has also made clear that human sexual motivation operates in complex ways. People may have multiple, rather than singular, motivations for engaging in sex, ⁵⁸ and their initial motivations for starting a sexual encounter may be different to their subsequent motivations for continuing that encounter. ⁵⁹ People’s motivations can be different for different kinds of sex, with physical motivations such as pleasure and desire more frequently reported for casual sex than for sex within longer-term relationships. ⁶⁰ Different motivations can more strongly motivate different population groups. While generally similar sets of motivations are reported across gender, men more frequently report physical motivations whereas women more frequently report emotional motivations. ⁶¹ Motivations can also change with age, with older adults more strongly motivated by giving pleasure to their partner and reporting idiosyncratic motivations such as the desire to ‘feel young again’. ⁶² Given the sheer complexity of human sexual motivation, enthusiastic consent’s focus on sexual desire seems arbitrary. While sexual desire might be relatively more important for some people having some types of sex (especially young adults having casual sex), its relative importance differs across population groups and contexts. But if sexual desire does not hold special significance for human sexual motivation generally, then there does not appear to be a good reason why law should adopt enthusiastic consent and thereby single out sexual desire as the only legally acceptable motivation for sexual consent.

Furthermore, enthusiastic consent’s focus on sexual desire may exclude people whose sexual lives and choices are less strongly mediated by this motivation. Perhaps the clearest example of this are people who identify as asexual. Asexuality is a sexual orientation category characterised by a relative absence of sexual attraction, and includes people who do not experience sexual attraction (asexual) as well as people who experience minimal sexual attraction (gray-asexual) and people who only experience sexual attraction after forming an emotional connection (demisexual). ⁶³ Many asexual people have no internal desire for sex and yet some asexual people nevertheless choose to have sex. ⁶⁴ Such choices cannot be dismissed as mere capitulation to social pressure and expectations to have sex, and any blanket assumption that all ‘sex is unwillingly performed by asexual people’ is disrespectful of their agency and their chosen ‘practices of intimacy’. ⁶⁵ The reasons why some asexual people choose to have sex are complex and personal, and include curiosity (that is, ‘want[ing] to know what it was everyone is talking about’) and demonstrating love for a romantic partner, ⁶⁶ wanting to please a romantic partner and wanting to foster intimacy and connection within a romantic relationship. ⁶⁷ As many asexual people do not sexually desire the sex that they engage in, any enthusiastic consent-based legal standard that required sexual desire would hamper their ability to ‘give legitimate consent to sex’ and thereby to engage in lawful sex at all. ⁶⁸ Beyond asexuality, the sexual decision-making of a range of other people would also be undercut if sexual desire were to become a prerequisite for lawful sex. This includes people with sexual desire disorders and people whose sex response cycle is characterised by responsive desire rather than spontaneous desire (that is, people for whom sexual desire typically follows rather than precedes engagement with sexual stimuli). ⁶⁹ It may also include many people within long-term relationships, as it is common for partners in such relationships to need to negotiate discrepancies between their levels of sexual desire as well as fluctuations in sexual desire over time. ⁷⁰

The future of enthusiastic consent

For the reasons set out in this article, Australian law reform bodies and legal decision-makers have been right to refuse to adopt enthusiastic consent into legal standards for sexual consent. Enthusiastic consent standards would likely be too imprecise to be useful in distinguishing lawful sexual activities from criminal behaviour and would likely draw the scope of criminal liability too broadly. Even if these practical issues could somehow be addressed, enthusiastic consent standards should still be refused because they would be unempirical and potentially exclusionary. The use of sexual desire as a legal prerequisite for sexual consent would fail to reflect the rich and varied reality of human sexual motivations and would threaten the ability of certain groups, such as asexual people, to be able to give legally effective sexual consent at all.

Just because enthusiastic consent is unsuitable for adoption into law does not necessarily mean that it is unsuitable for use within other contexts. Although enthusiastic consent may not be an appropriate guide for setting the standard of lawful sex, it may still have valuable contributions to make towards setting the standards of ethical sex or towards setting aspirations for good sex. Indeed, enthusiastic consent likely has significant value ‘[a]s an educative tool’ because it provides ‘a very fine place to start discussions about consent’. ⁷¹ Enthusiastic consent’s value comes from the fact that it reconnects sexual desire with sexual consent, promotes mutuality and stronger communication between sexual partners, and draws critical attention to potential problems even where a person says ‘yes’ to sex. These are all important things to touch on when learning about sexual consent and important factors to keep in mind when thinking about sexual consent. However, care needs to be exercised when discussing enthusiastic consent even outside law. Some Australian educators have raised concerns that teaching towards enthusiastic consent can be problematic because it sets up ‘unrealistic expectations’ about sex and glosses over ‘the messy realities of people’s sexual lives, which often involve a range of nuanced experiences between feeling enthusiastic about sex and not wanting to engage in sex at all’. ⁷² If enthusiastic consent can be broached in ways that complement, rather than elide, the complexities of human sexuality, then it will remain a valuable part of ongoing discussions around sexual consent.