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The Sex Contract

Would you sign one?

Think about the things that go through your mind when you're about to sleep with someone for the first time. Perhaps you're wondering what he thinks of your body... Or deciding when to bring out the condom... Or even hoping your flatmate isn't in the next room... You're probably not thinking, "Before I climb into bed I should sign a contract to ensure my new lover won't be falsely accused of rape."

But if some MPs and sex therapists have their way, this is just what should be crossing your mind. In 2008, independent MP Ann Bressington suggested introducing a legislative bill that would mean new couples would be made sign "sex contracts".

She suggested these contracts would ensure sex is consensual, as well as prevent men from being falsely accused of rape. Couples would sign the consent form in order to confirm they're both willing to have sex. The form would even specify the kind of foreplay or the type of kissing they both agree to. The bill was never passed, but Bressington isn't the only one pushing for it.


Recently, US sex therapist Dr Ava Cadell sparked a huge debate after she published a sexual consent form on her website for people to download. After several athletes in the US claimed they'd been falsely accused of rape, Dr Cadell suggested the form would help protect men - particularly sportsmen and other high-profile celebs - against being falsely accused of sexual misconduct.

The contract states: "I further declare I am at this time not under the influence of alcohol, drugs or medication and agree to engage in consensual sex with: ______________. At this time, I do not intend to change my mind before the sex act or acts are over."

While many people were horrified by the idea of partners not being able to change their mind about sex, Dr Cadell defended herself, saying, "The sexual consent form is a cautionary way for one person to ask permission to have sex with another. There will be no confusion or miscommunication... You and your partner get to choose which sexual activities you want to indulge in and list special requests in writing so there are no unrealistic expectations or misunderstandings." Does she have a point? Seventy-one per cent of women believe sexual assault victims should take some responsibility if they got into bed with someone before being attacked, says a UK study. But Dr Cadell says her contract protects women from blurred boundaries. The contract states: "It is further understood when I say the words "CODE RED" my partner agrees to STOP INSTANTLY!"


While this might seem like a good idea in theory, experts also believe there are fundamental problems with a sex contract.

"It's not legally binding," says Annie Cossins, from the University of New South Wales' Faculty of Law. "In a criminal court, it is very unlikely it would be admissible as evidence." As far as protecting sportsmen, or any men, from being wrongly accused of sexual misconduct, Cossins believes it's unlikely it would work. "Judges wouldn't look on this favourably," she says. "Yes, they have to consider all evidence, and there is some chance it could be used against a woman in court by the prosecution, but I would say it is highly unlikely a form like this would get a man accused of rape off the hook... However, to be on the safe side, I would advise women never to sign one." It's also sending a strong message that women don't have the right to withdraw consent for sex unless they've written it down, says Cossins. "The law in Australia is clear: consent must be given for sex to occur and it can be withdrawn at any time. You do not need to sign anything."

Karen Willis, executive officer at the NSW Rape Crisis Centre, believes the contract fuels the idea that "sexual assault is a case of misunderstanding rather than a criminal act". She fears that if these contracts became standard practice the only people who would benefit are sex offenders. "Offenders could use it as a coercive tool to protect their criminal behaviour and justify their actions," she says. "I would be extremely concerned that some people would feel they can now 'Go for it' if they have a contract."


The contract would also have an impact on couples embarking on a one-night stand or newly dating, says sex and relationship therapist Pamela Supple, from Sex Therapy Australia. "It takes the spontaneity out of the equation," she says. "Sex should be fun, playful or anything a consensual couple desires. Exploring what you both like is an exciting part of the journey. Trying to predict what will happen with a tick-box is a joke. People have different sexual moods all the time." While it's important to feel sexually safe in any relationship, Supple believes these contracts immediately "place a seed of doubt about the other person". She says: "If someone asked you to sign a contract stating you'd agreed to consensual sex with them, wouldn't it ring alarm bells before anything has even got off the ground?"


You don't need a contract to negotiate what you're comfortable with in bed, says Willis. "Whisper sweet nothings in each other's ears and discuss your desires to ensure both parties are consenting." She adds: "The most important thing to remember is you can withdraw consent at any time - that must be respected." Katherine Chatfield

From Cosmopolitan Magazine - June 2010