In light of the NRL group sex scandals and the more recent ‘dildo rape case’, we take a look at the issue of sexual consent. What is rape? Why are the lines not always clearly drawn? And who is muddying the waters?

Linda Naggs knows how to make an entrance – cracking her whip, smiling cheekily, all eyes in her direction. In September 2008 the 40 year old blonde stripper, who goes by the stage name of Tiffany, arrived at a buck’s party on Victoria’s Mornington Peninsula ready to satisfy the crowd of 30 men, all keen to see a bit of skin. Less than a minute into her act the groom had vanished, and so the best man found himself in the hot seat, with Naggs slipping off his shirt, tugging down his trousers, pushing him on all fours. He was resisting, but the crowd loved it, and so did she. She pulled out a pink strap-on dildo and lubricant.

“Don’t you put that inside me!” he said, to which she replied, “Not a problem. Relax, it’s only fun, I won’t go there.” But she did go there, against a backdrop of his friends laughing, cheering and egging her on.

He ran off to the toilet and returned with a bloody piece of toilet paper as evidence that he’d been penetrated. “Look at this!” he yelled. She claimed it was “a joke”.

But it wasn’t so funny as the evidence unfolded in the Victorian County Court in July this year. According to testimonies there was an altercation, during which some of the guests intervened, pulling the pair off of each other. Naggs threatened to call her bikie mates to sort things out. Eventually she refunded his money and left. The matter was reported to the police the next day. Medical examiners found that the penetration had been sufficient for him to sustain an abrasion. Later he told the court that his manhood had been affected by the incident.

But was it rape, like the victim had claimed? After less than a day of deliberation the jury decided that no, it wasn’t. But why not? Because he’s a man and she’s a woman? Because he paid for her services? Because it was a sex toy? Because being half naked and on all fours meant that he was asking for it? All of these opinions about ‘blurred lines’ found their way into media discussions around the case, and even into the courtroom.

“There’s no blurred line there,” said Mary Heath, an Associate Professor, Flinders University’s Faculty of Law. “He said ‘don’t put that inside of me’, she said ‘I won’t’, meaning ‘I’ve heard you’. Don’t get me wrong, I think consent can be a very complex question. The only thing that makes this seem complicated is that people are thinking, ‘he was doing something transgressive, he had his pants down in the presence of a woman wearing a dildo – what did he think would happen?’ Well, he obviously wasn’t expecting that.”

According to Heath, who has 15 years experience teaching rape law, consent fundamentally boils down to free and voluntary agreement. “That’s not as straight forward as you might think: voluntary means that the person has the capacity to make a decision, freedom suggests that there can be some types of pressure that can be brought to bear.” Kinds of pressure can refer to threats or intimidation, substantial intoxication, fraud or deception, mistaken identity, having a limited cognitive capacity or being unlawfully detained.

After reading the media coverage of the trial, Heath believes that the best man was treated with suspicion, similar to the treatment a lot of women receive in rape cases.

“He had the additional difficulty of being a man saying ‘I was raped by a woman’. This is highly embarrassing to people at large. This case [was] treated like a joke, but it wouldn’t have been [were the gender roles reversed]. To me, the defence lawyer’s conduct as described in the media makes it sound like he did everything possible to encourage the jury to believe that the best man engaged in something akin to contributory negligence. In short, he asked for it.”

These are arguments thrown at women in rape cases all the time. Why was she drunk with that many men? Why did she go to the party? Why was she wearing that low cut dress? In much the same way, the defence lawyer argued that being half naked and on all fours was akin to “playing chicken with moving cars”. The media coverage delighted in the salacious details of the case – the “statuesque” pink dildo, that the show was called ‘anal’, that the best man hired the stripper.

“I am drawing a line in a particular place,” said Heath. “I’m saying, ‘I don’t care if the person was naked, I don’t care if they agreed to have sex with seven people before the eighth one wandered past,’ they still get to decide what they want to do next, with anyone. I think it’s where the law draws the line or at least where it should.”

According to Heath, beliefs about consent, which are based on myths and stereotypes, are being applied in Australian courts instead of the law. “I think all of the statistical evidence points to that, unfortunately.” Heath said that the 2008 dildo rape case is a perfect example of the chasm that exists between what society believes is rape and what is actually rape under the law. “The jury was led to believe that rape is only when somebody blameless is attacked by a total stranger by surprise, from behind a bush. What counts as a real rape in this society and statistically what’s actually a common rape are really different things.”

In light of incidents like the 2008 dildo rape case, and the NRL sex scandals which were given widespread media coverage earlier this year, it’s interesting to ponder how society views consent in transgressive circumstances, like group sex, or when gender roles are reversed. An area where similarly complex debates may arise is within bondage and fetish scenes, often known as BDSM, which can encompass a whole range of transgressive sexual practices from bruising, flogging and spanking through to surgery, rape, torture and abduction scenes. Last year Boy George was imprisoned for imprisoning an escort in his home unlawfully. And one of the most high profile cases involving BDSM sex took place in the UK in December 1990 when 16 gay men were given prison sentences of up to four and a half years or were fined for engaging in consensual S and M activity, because video footage of their activities had made its way into the hands of the police.

Patrick, 37, has been into bondage for almost ten years. He says that while the illusion of non-consent is at the heart of many submissive/dominant scenarios, that doesn’t mean they’re non-consensual. Usually one or more safe words are designated beforehand, which allow the participant to kill the situation instantly.

“There’s a master who owns his own playspace,” said Patrick. “People travel from all over the world and pay money to get abducted by him. They arrange to be in an area at a certain time, he grabs them, puts them in the boot of his car, blindfolds them, gags them, ties them up. Sometimes he takes them back to his dungeon and holds them captive for hours, sometimes days. I know one guy who did it – the master threw him in the boot of the car, ripped his clothes off and fisted him right then and there, while the car was parked on a street in Surry Hills. Then he dumped him in an alley.”

While safe words are one way of managing situations, according to Heath, the more complicated the scenario, the more likely it is that it will become non-consensual.

“Sometimes the chances of achieving an ethically and clearly negotiated sexual act are simpler than others. That doesn’t mean people always achieve it. When you look at the conversations had around group sex, particularly when you look at the NRL sex scandals, you can see that the wheels can come off, things can come unstuck. The more people are engaged in any form of negotiation the more of a chance there is that something unexpected or untoward goes down. I don’t think this is something that only happens in relation to sex.”

Heath points out that there are two elements at play when it comes to bondage and fetish scenes – not only is there the line between rape and consent, there’s also the line between sex and assault.

“When you’re talking about things that are not sex, things that can cause damage to your body, there are limits that the law establishes to what you can consent to.” Heath says that you can consent to anything that doesn’t do you actual bodily harm, things like caning and slapping. “However, there’s a line beyond that where you can’t consent.”

There are some fetish scenes that involve cutting the skin or deep bruising. Heath says these types of acts fall within a legal grey area. “It’s one thing what the law says, but … if everybody is really happy with what’s going on nobody goes to the police.” That being said, however, she says that people often consent to things without knowing how they’ll respond. “This happens all the time. It’s very difficult for us to forecast the future. An example could even be as banal as ‘if we have sex will that mean that you want to marry me? Will you want to move in? Will that ruin our friendship?’ People can’t predict those things, let alone what would happen if I decided that it would be interesting for someone to cut me open and spray vinegar into the wounds.” When it comes to committing these types of acts, one should consider not only if there is consent, but also if it’s assault, which renders any consent invalid.

Patrick said that he is aware of a number of occasions where the line between fantasy and reality has been crossed. “For example, the submissive says ‘don’t fuck me’ but the master fucks them anyway – stuff like that. They’ve ignored the person’s wishes and have taken advantage of the situation. It definitely happens, but people don’t report it. How do you go to the police and say ‘I asked someone to tie me up, beat me up, pierce me, put needles in me or cut me, but I didn’t want to be fucked, and they fucked me.’”

For support or further information on rape, please contact the Rape Crisis Centre in your state.