By NINA FUNNELL
Earlier today in the ACT Supreme Court, a 51-year-old man pleaded guilty to one count of sexual intercourse without consent. His plea came after having sex with a sex-worker in the knowledge that she was not giving full and informed consent at the time.
Why? Because she only gave that consent on the basis that she would receive a fee of $800. A fee that the man, Akis Livas, never has any intention of paying.
In 2010, Livas arranged the appointment with the sex-worker and agreed to pay her $800 in exchange for sex. When he arrived he handed her an envelope which supposedly contained the money.
When the woman went to check the contents of the envelope, Livas, who was a previous client of the woman, asked her not open it, saying that it would destroy the fantasy of trust between them.
After engaging in sex, the woman opened the envelope to discover that Livas had deliberately and maliciously deceived her. The envelope contained nothing but a folded brown paper bag and a white card with a flower on it.
It’s a landmark case that will no doubt test the community’s understanding and attitudes towards both consent laws and the rights of sex-workers.
Under ACT law, sex without consent is a crime, and consent is not considered valid if a person’s agreement to sex was obtained through a “fraudulent misrepresentation” of facts on which the consent was based. (Consent is also considered invalid if agreement was obtained through extortion, threats of violence, the unlawful detention of a person, or the abuse of a person’s power or authority over the victim, amongst other things.)
Crucially, this law does not mean that if a person big-notes themselves or lies about an aspect of their life in the hopes of getting someone into bed, that the sex is automatically deemed non-consensual.
Rather, what it means is that if a person explicitly states that they are only agreeing to a sexual act on a very specific pre-condition, and if you fake that pre-condition in order to gain sexual access to the person (while knowing that they wouldn’t otherwise be happy to consent), then according to the law, you “shall be deemed to know that the other person does not consent”.
Another classic example where this law might apply, would be in cases where a woman was deceived into agreeing to a gynaecological examination on the basis that she had been told there was a valid medical reason for it, when in actual fact, there was no medical reason, and the offender fabricated the excuse in order to secure her agreement, so that he might sexually gratify himself.
Or in this case in Sydney, two men were found guilty of raping multiple women after they convinced the victims that sexual penetration during “prayer sessions” was necessary to lift a black magic curse that would cause sickness and death in their families. The women agreed at the time, but the false pretence and the exploitation of trust and authority rendered it rape.
While some may be tempted to dismiss this current case as mere theft or business fraud, it’s important that we resist that thinking and that we recognise that sex-workers are, first and foremost, human beings with human rights. In the ACT, where sex work is legal, sex-workers are entitled to all the same rights and protections as all other citizens. This includes the right to control if and under what circumstance they give consent.
Indeed, all women- regardless of their profession, their relationship status, or their sexual history- have a right to control when and how they consent. And like all of us, no one wants or expects to have that right violated while at work.
So while it is accurate to say that Livas has defrauded her business out of money, the more serious point is that in the process of doing so, he ALSO violated her sexual rights as a citizen and human being. These rights don’t disappear just because she clocks on at work.
And when you begin to unpack the details of what really occurred in this case, there is much in his behaviour which mirrors more traditionally recognised forms of rape.
Consider the following:
This is a man who arrived at the scene that day, already intending to exploit a woman’s trust, autonomy and body. His actions were clearly planned, premeditated and calculated. Armed with a prop he’d prepared earlier, he obtained false-consent from a woman he clearly knew would not otherwise enter into a free agreement over sex.
This is a man who intentionally manufactured a scenario in which he could exert power and control over a woman who was made deliberately vulnerable through his manipulations.
And just like any other rapist, this is a man who prioritised his sense of entitlement to use her body, over and above her right to decide how and under what circumstance she would consent to sex.
This man violated her rights. While Livas’ conduct may not conform to the knife wielding stranger-danger rapist cliché, his casual disregard and contempt for the right of a woman to choose if and under what circumstances she consents, is reprehensible.
It’s also important to point out that even though the victim may have only realised the fullness of the violation after the sexual act was completed, our courts already recognise that rape is not always experienced as violating or even unpleasant during the sexual act itself and that it is possible for trauma and distress to set in retrospectively (for example, in cases where a victim was passed out or unconscious, or in child molestation cases where the victim assented to the abuse, trauma often doesn’t kick in till well after the physical violation has ended).
In fact, when a victim has a delayed realisation as to the nature of a sexual violation, the trauma can be all the more severe since the victim was not only violated, but additionally, in not fully comprehending what was actually occurring at the time of the incident, the victim was also denied the opportunity to make an informed choice as to what they wanted their response to be.
This drastically compounds the sense of powerlessness and humiliation and it significantly contributes to the sense of vulnerability, exploitation and loss of control- the very factors which make rape, rape.
Over the centuries the laws around rape have evolved considerably. There was a time when rape was considered a property crime, and the victim was not the woman who was raped, but the man who owned her, whose ‘property’ had been ‘damaged’ (usually the father or husband was considered the victim, and of course, rape within marriage was not ever recognised under this model).
Indeed, in NSW, men were still imagined to own their wives bodies right up and into the 1980s, when rape within marriage was finally recognised as a crime.
For the latter part of the last century, rape was culturally defined through the presence or absence of force, and the presence or absence of a victim’s resistance. But this made it very difficult to prosecute in cases where a victim froze in terror, or was unconscious or otherwise unable to communicate. The law also implied that women were considered to be in a constant and ongoing state of consent with all men, at all times, unless and until they specified otherwise by communicating that they were ‘opting out’.
In one particularly ludicrous case in America, a man held a woman at knife point after breaking in to her house and entering her bedroom. It was 1992, and in the midst of the AIDS panic, she pleaded with him to at least wear a condom if he was going to rape her. Shockingly, a grand jury refused to indict the perpetrator on the basis that the victim had not actively resisted and that her words implied an agreement to sex.
Nowadays, and because of outrageous cases like these, we have replaced this opt-out model of consent, with a pro-active opt-in model. This means that rape is not defined by the presence or absence of force, nor the presence or absence of discernible resistance. Rather rape is defined by the presence or absence of freely given, informed consent.
It is a considerably different test and it reflects just how far the court’s understanding has come in terms of an individual’s right to physical autonomy and the right to self-ownership. And while the community’s response to this current guilty plea will highlight the extent to which people’s attitudes have also evolved, we must remember that at the centre of this case is a woman.
And her rights are no different to our own.
Akis Livas will be sentenced on 6 February 2015.