Just to Be Clear, Saying You’re On the Pill Does Not Mean Consent

How do you tell someone you want to have sex with them? And what's the response you're hoping for in return? Usually, this involves the words "yes" and then hopefully "fuck, yes," as well as some heavy breathing and mutual fumbling at buttons. Not so if you're Scott Kuggeleijn.

The 24-year-old cricketer from Hamilton, New Zealand, was accused of rape in 2015 and the case went to trial in July. Kuggeleijn's lawyer, Philip Morgan, a QC and a practicing lawyer for nearly 40 years, questioned the complainant at length, and as with so many rape cases, the questioning revolved around consent and how that was given. He described a previous conversation that Kuggeleijn and the complainant shared, in which the woman told him she was on the pill. And apparently, this warranted the follow up question "Did you not recognise that telling him you were on the pill in those circumstances was you telling him you wanted to have sex with him?"

A friend of mine recently had a conversation about her birth control over Tinder. Or rather, she'd tried to avoid the conversation. While arranging a meetup for coffee, she was asked what she used. As the graceful and socially adept person that she is, she gave him the benefit of the doubt, choosing to see it as the guy's first screw-up but still prepared to let him make a couple more as they continued to chat. She ignored it, but he didn't, insisting she reply, and thus earning himself a slap on the virtual wrist and an un-matching.

Demanding an answer to a pretty personal question before a coffee date is one thing. But doing it the week that Scott Kuggeleijn's defence lawyer uses it as an example of consent, is another.

The Kuggeleijn case resulted in a hung jury of eight men and four women. He is now facing a retrial. The issue here is not only the complexities of consent that are continually cited in sexual assault cases, particularly amongst sportsmen. It's the way women are seen to set themselves up for sexual assault, and to enable it. Philip Morgan summed up his case, acknowledging that the complainant never gave "lustful consent," but had rather relented. Relented. Sounds hot. Certainly not the response generally sought in enthusiastically consensual sex.

There are many ways in which the kind of contraception a person uses might be brought into everyday conversation. And it's a very context dependent kind of conversation. It could be a very personal thing, or something purely practical. Using Morgan's line of reasoning you could find yourself saying "No, thanks. I can't drink grapefruit juice, I'm on the pill," only to discover that you've just offered up a blanket consent.

It makes conversations like the one my friend had even more difficult. What's this guy's motivation here? Is he just lining up consent in case he thinks coffee went well? Or is this his standard modus operandi to cover his arse just in case? The store credit version of consent. After all, it seemed to work for Kuggeleijn.

Without a reliable male contraceptive—and yes, they're on their way, and yes, condoms are obviously part of this answer too—a man hooking up with a woman, casually or in a committed way, does have a right to limit his exposure to STIs and/or pregnancy. So when's the right time to ask? And how to do it so that it's not like you're pre-purchasing consent?

Realising that consent can be withdrawn is one thing, and something Philip Morgan may need to get his head around. Although in no-one's world, not even apparently Scott Kuggeleijn's, is "I'm on the pill" a hot and heavy yes, but even if it was, the fact that the complainant later said she said no, and then was clearly reluctant meant that "consent" was invalidated. Consent cannot be seen not a one off thing, it's an ongoing process. The person who's heavy breathing against your neck can say yes as much as they like, but the moment that becomes no, or even less of a yes, it's over.

Yes, a lot of rape cases rest on "he said, she said", it's why they're so difficult to prosecute, and thus why women don't report them. And at best, the Kuggeleijn case is he says: "she relented," or she says: "I was raped." Neither is the kind of sex to really be proud of. Kuggeleijn's case is back in court this week.

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