Married couples - individual wills need a joint approach
As I waved my son off to uni this week, I tried to give him some motherly legal advice (although as it comes from me, I fear he may well ignore it). The advice is drawn from my years of representing other mothers’ sons who have been accused of rape or other sexual crimes on campus. Because I know that my son generally cannot remember more than a nugget of information at a time, I kept it brief:
Meet people and have fun. You are likely to engage in lots of sex. That’s ok so long as you keep yourself, and the other person, safe.
When it comes to sex, please remember these rules:
1. Treat other people as you would like to be treated. This means being polite and respectful.
2. It is your responsibility to make sure you have (and give) consent for any sexual contact. By sexual contact I mean, touching, sexting (which is only lawful if you are sure the other person is over 18 and on the condition that you do not share those photos with anyone, not even your best mate, without permission), kissing and, of course, full blown intercourse.
Consent means respecting yourself and other people. Consent is given, in UK law, when a person agrees by choice and has the freedom and capacity to make that choice.
In practice that can mean several things but the best way is to “use actual words”. Have a conversation about consent.
Start the conversation early. If necessary, tell the other person how embarrassing it is that your mum talks and writes about sex and young people for a living. I appreciate that talking about your mum at a time like this is a bit weird.
Your potential partner may laugh and you can too, but it allows you to start a conversation that ensures that I will never have to represent you for rape or sexual assault.
3. Use protection. I am too young to be a grandparent. But even more worrying than that, stealthing is not funny, it’s rape. If, in the conversation above, she (or he) says yes I will have sex with you so long as you use a condom, then that consent is conditional on you keeping that condom on throughout. Sure, accidents happen but stealthing is about the deliberate removal of a condom during sex. The law is quite clear.
4. If you are too drunk (or too high) to start the conversation about consent, then you are too drunk (or high) to accurately assess whether the other person is giving informed consent. Of equal importance is that you will not remember or be able to properly describe to a police officer or a judge whether you had consent or why you reasonably believed you had consent. Either eventuality is bad should a concern be raised later.
If the other person is more drunk than you, again, that is bad. Make sure they are safe and leave it at that for now. If it was meant to be, then it can happen another day.
I sincerely hope my son will never need my professional services, but, if he does, I urged him to talk to me, as soon as he can. I will find him the best lawyer I can.
This article first appeared in the Huffington Post. Please click HERE or the button below to view the article.
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