Editing Sexual consent (section)

==Elements of consent==
Within the scholarly [[literature]], definitions surrounding [[consent]] and how it should be communicated have been contradictory, limited or without consensus.<ref name=Roffee/><ref name=Beres/> Dr James Roffee,  a senior lecturer in criminology in the [[Monash University]] School of Social Sciences, argues that legal definition (see [[Consent (criminal law)|Legal concept of consent]]) needs to be universal, so as to avoid confusion in legal decisions. He also demonstrates how the moral notion of consent does not always align with the legal concept. For example, some adult siblings or other family members may voluntarily enter into a relationship, however the legal system still deems this as incestual, and therefore a crime.<ref>{{cite journal|doi=10.1093/hrlr/ngu023|title= No Consensus on Incest? Criminalisation and Compatibility with the European Convention on Human Rights| volume=14 |issue= 3| journal=Human Rights Law Review|pages=541–572|year= 2014|last1= Roffee|first1= J. A.}}</ref> Roffee argues that the use of particular language in the legislation regarding these familial sexual activities manipulates the reader to view it as immoral and criminal, even if all parties are consenting.<ref>{{cite journal|title= The Synthetic Necessary Truth Behind New Labour's Criminalisation of Incest| doi=10.1177/0964663913502068 | volume=23|journal=Social & Legal Studies|pages=113–130|year = 2014|last1 = Roffee|first1 = James A.}}</ref> Similarly, some [[Minor (law)|minor]]s under the legal [[age of consent]] may knowingly and willingly choose to be in a sexual relationship. However, the law does not view this as legitimate. While there is a necessity for an age of consent, it does not allow for varying levels of awareness and maturity. Here it can be seen how a moral and a legal understanding do not always align.<ref>{{cite book|title=Roffee, James (2015). When Yes Actually Means Yes in Rape Justice. 72 - 91|df=|doi=10.1057/9781137476159.0009|chapter = When Yes Actually Means Yes|year = 2015|last1 = Roffee|first1 = James A.|isbn=9781137476159}}</ref>

Some individuals are unable to give consent, or even if they can verbally indicate that they consent, they are deemed to lack the ability to make informed or full consent (e.g., minors below the age of consent or an intoxicated person). People may also consent to unwanted sexual activity.<ref>Quinn-Nilas, C, Goncalves, M, Grant, A, & Kennett, D. (2018). '"A thematic analysis of men's sexual compliance with unwanted, non-coercive sex." ''Psychology Of Men And Masculinity'', 19(2): 203-211. </ref> 

In Canada, [[implied consent]] has not been a defence for [[sexual assault]] since the 1999 [[Supreme Court of Canada]] case of ''[[R v Ewanchuk]]'', where the court unanimously ruled that consent has to be explicit, instead of merely "implied".<ref>{{Cite web|url=https://www.thestar.com/opinion/editorials/2015/11/13/no-still-means-no-editorial.html|title=No still means "no": Editorial|last=|first=|date=November 13, 2015|website=thestar.com|publisher=[[The Toronto Star]]|access-date=October 13, 2016}}</ref> In the United States, the defense may have a chance to convince the court that consent was in some way implied by the victim. Many actions can be perceived by the court as implied consent: having a previous relationship with the alleged rapist (e.g. befriending, dating, cohabitating, or marrying),<ref name= "Balos">Balos, Beverly, and Mary Louise Fellows. "Guilty of the Crime of Trust: Nonstranger Rape." Minn. L. Rev. 75 (1990): 599.</ref> consenting to sexual contact on previous occasions, flirting,<ref name="Wicktom">Wicktom, Cynthia Ann. "Focusing on the Offender's Forceful Conduct: A Proposal for the Redefiniton of Rape Laws." George Washington Law Review 56.2 (1988): 399-430.</ref> or wearing "provocative" clothing.<ref>Tchen, Christina M. "Rape Reform and a Statutory Consent Defense." J. Crim. L. & Criminology 74 (1983): 1518.</ref>

===Unwanted sexual activity===
Unwanted sexual activity can involve rape or other sexual assault, but it may also be distinguished from them. Jesse Ford, the author of a 2018 study that showed that men are having unwanted sex with women to "prove they are not gay", states that "[a]ll sexual assault is unwanted sex, but not all unwanted sex is sexual assault."<ref>{{cite web |url=https://www.pinknews.co.uk/2018/07/15/men-unwanted-sex-women-not-gay/ |title=Men admit to having unwanted sex with women to 'prove they are not gay' or 'weird' |last=Franklin |first=Lauren |date=15 July 2018 |website=www.pinknews.co.uk |publisher=Pink News |access-date=4 August 2018 |quote=}} </ref>

A 1998 study showed that both men and women "consen[t] to unwanted sexual activity" in heterosexual dating; in these cases, they consented to unwanted sex to satisfy their partner, "promote [[intimacy]]", or avoid tension in the relationship".<ref name="O'Sullivan">O'Sullivan, Lucia F., Allgeier, Elizabeth Rice. "Feigning sexual desire: Consenting to unwanted sexual activity in heterosexual dating relationships". p. 234-243. ''The Journal of Sex Research''. Volume 35, 1998 - Issue 311. https://doi.org/10.1080/00224499809551938</ref>The authors argue that estimates of "unwanted (nonconsensual) sexual experiences" may confound nonconsensual sex and consensual sex.<ref name="O'Sullivan"/>

===Verbal vs. nonverbal===
[[File:Kiss at Feb Club NYC 20100202.7D.02686.L1.C45.BW SML (4469827485).jpg|thumb|right|200px|While different consent policies have differing views on whether non-verbal cues count as consent, some rules do permit seeking consent through non-verbal communication.]]
There can be verbal or nonverbal consent, or a mix of the two types, depending on different policies and laws. According to ''Bustle'' writer Kae Burdo, the maxim "only verbal consent counts" is limited, in that it fails to accommodate parties that can only consent non-verbally, such as people with disabilities and those in BDSM communities . <ref>{{cite web |url=https://www.bustle.com/articles/154179-what-nobody-talks-about-when-they-talk-about-consent |title=What Nobody Talks About When They Talk About Consent |last=Burdo |first=Kae |date= 25 April 2016|website=www.bustle.com |publisher=Bustle |access-date=21 June 2018 |quote=}} </ref> Dartmouth College's rules on consent state that a communication in intimate encounters is often nonverbal cues such as smiling, nodding, and touching another person; however, it states that "...body language often isn't enough" because interpreting body language is risky, so the best option is to use "explicit verbal communication".<ref>{{cite web |url=http://www.dartmouth.edu/consent/communication/whendo.html|title=How Do I Know If I Have Consent? |author=<!--Not stated--> |date= |website=www.dartmouth.edu |publisher=Dartmouth |access-date=21 June 2018 |quote=}} </ref> ''The New York Times'' reports that men typically use nonverbal indicators to determine consent (61 percent say they perceive consent through a partner's [[body language]]), but women typically wait till a partner verbally asks them before they indicate consent (only 10 percent say they indicate consent through body language), a differing approach that may lead to confusion in heterosexual couples' encounters.<ref>{{cite web |url=https://www.nytimes.com/2015/08/02/education/edlife/affirmative-consent-are-students-really-asking.html |title= Affirmative Consent: Are Students Really Asking?|last=Keenan |first= Sandy|date=28 July 2015 |website=www.nytimes.com |publisher=New York Times |access-date=21 June 2018 |quote=}} </ref>

Mary Spellman, the dean of students at Claremont McKenna College, states that her college allows either verbal or non-verbal consent, with non-verbal consent being assessed by looking at whether the other person is "actively participating" and touching the other person when he is touching her or encouraging the first person", signs which indicate that a "...person is an active participant in whatever is going on."<ref name="Tovia Smith">{{cite web |url=https://www.npr.org/2014/06/13/321677110/a-campus-dilemma-sure-no-means-no-but-exactly-what-means-yes |title=A Campus Dilemma: Sure, 'No' Means 'No,' But Exactly What Means 'Yes'? |last=Smith |first=Tovia |date=13 June 2014 |website=www.npr.org |publisher=NPR |access-date=23 June 2018 |quote=}} </ref>

The ''Daily Dot'' states that verbal consent is best because both participants can clearly indicate what they want, ask questions and seek clarification; in contrast, nonverbal consent may not be clear, as people "...have different understandings of gestures, “vibes,” and nonverbal cues", which can lead to "ambiguity and misunderstanding".<ref>{{cite web |url=https://www.dailydot.com/irl/what-is-consent/ |title=A plain and simple guide to understanding consent |last=Dimeo-Ediger |first=Winona  |date=13 September 2017 |website=www.dailydot.com |publisher=Daily Dot |access-date=21 June 2018 |quote=}} </ref> [[Lisa Feldman Barrett]], a psychologist and neuroscientist, states that in a sexual consent context, "[f]ace and body movements aren’t a language" that participants can rely on, because the human "brain is always guessing" about how to interpret smiles and expressions; as such, "...facial movements are terrible indicators of consent, rejection and emotion in general" and they are "not a replacement for words."<ref> {{cite web |url=http://time.com/5274505/metoo-verbal-nonverbal-consent-cosby-schneiderman/ |title=Why Men Need to Stop Relying on Non-Verbal Consent, According to a Neuroscientist |last=Feldman Barrett |first=Lisa |date=11 May 2018 |website=time.com |publisher=Time |access-date=21 June 2018 |quote=}}</ref>

===Age===
{{Main|Age of consent}}
Children or [[Minor (law)|minors]] below a certain age, the [[Age of consent|age of sexual consent]] in that [[jurisdiction]], are deemed not able to give valid consent by law to sexual acts. The age of consent is the age below which a minor is considered to be [[legally incompetent]] to consent to [[Human sexual activity|sexual acts]]. Consequently, an adult who engages in sexual activity with a minor younger than the age of consent cannot claim that the sexual activity was consensual, and such sexual activity may be considered [[statutory rape]]. The person below the minimum age is regarded as the victim and his or her sex partner is regarded as the offender, unless both are underage. The purpose of setting an age of consent is to protect an underage person from sexual advances. Age of consent laws vary widely from jurisdiction to jurisdiction, though most jurisdictions set the age of consent in the range 14 to 18. The laws may also vary by the type of sexual act, the gender of the participants or other considerations, such as involving a [[position of trust]]; some jurisdictions may also make allowances for minors engaged in sexual acts with each other, rather than a single age.

Jennifer A. Drobac, who teaches law at Indiana University, states that young adults aged 16 to 21 should only be able to "offer “assent” to sex with a significantly older person", rather than consent, but then "permit them to revoke that assent at any time".<ref>{{cite web |url=https://www.vox.com/the-big-idea/2017/11/20/16677180/age-consent-teenage-psychology-law-roy-moore |title=Age-of-consent laws don't reflect teenage psychology. Here's how to fix them. |last=Drobac|first=Jennifer A. |date=20 November 2017 |website=www.vox.com |publisher=Vox |access-date=30 March 2019 |quote=}}</ref>

===Mental disabilities or conditions===

Likewise, persons with [[Alzheimer's disease]] or similar disabilities may be unable to give [[Consent (criminal law)|legal consent]] to sexual relations even with their spouse.<ref name=NYT42215>{{cite news|author1=Pam Belluck|title=Iowa Man Found Not Guilty of Sexually Abusing Wife With Alzheimer's|url=https://www.nytimes.com/2015/04/23/health/iowa-man-found-not-guilty-of-sexually-abusing-wife-with-alzheimers.html|accessdate=April 23, 2015|work=The New York Times|date=April 22, 2015}}</ref> New York does not consider it to be consent in cases where people have a physical disability that makes them unable to communicate that they do not consent, either using words or physically or if they have a mental illness or other mental condition that makes them unable to understand the sexual activity.<ref name="Jacquelyn Gray">{{cite web |url=http://crimefeed.com/2016/03/important-concepts-know-comes-consent-laws-people-disabilities/ |title=WHEN CONSENT CAN'T BE GIVEN: WHAT TO KNOW ABOUT SEX & DISABILITY LAWS |last=Gray |first=Jacquelyn|date= 1 March 2016|website=crimefeed.com |publisher=Crime Feed |access-date=23 June 2018 |quote=}} </ref> South Carolina has a 10-year penalty for a person who has sex with a person who is mentally challenged or incapable of movement.<ref name="Jacquelyn Gray"/> Law professor [[Deborah Denno]] argues that people with some types of mental challenges should be able to consent to sex; she says they "...have the right to do so, and unnecessarily broad and moralistic restrictions infringe upon that right".<ref>Deborah W. Denno, Sexuality, Rape, and Mental Retardation, 1997 U. Ill. L. Rev. 315 (1997) 
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/121 </ref>

===Unconsciousness or intoxication===

In some jurisdictions, individuals who are intoxicated from alcohol or drugs cannot consent. For example, Michigan Criminal Sexual Conduct Laws states that it is a crime to have sex with a “mentally incapacitated” person who cannot control their conduct or consent.<ref>{{cite web |url=https://sapac.umich.edu/article/50 |title=Alcohol & Sexual Assault |author=<!--Not stated--> |date= |website=sapac.umich.edu |publisher=University of Michigan Sexual Assault Prevention and Awareness Center |access-date=9 June 2018|quote=}} </ref>

In Canada, intoxication is a factor that affects whether a person can legally consent to sexual activity. However, the level of intoxication that will make consent impossible varies according to circumstances, which include how intoxicated the person is and whether they voluntarily consumed the alcohol or drugs.<ref name="Nova Scotia case">{{cite web |url=https://www.cbc.ca/news/canada/nova-scotia/criminal-code-consent-gregory-lenehan-sexual-assault-law-court-1.4014105 |title=Does the law say a drunk can consent? The answer is yes: A look at what the Criminal Code and courts say about consent and a person's ability to give it |author=<!--Not stated--> |date=8 March 2017 |website=www.cbc.ca |publisher=CBC |access-date=23 June 2018 |quote=}} </ref> The Supreme Court of Canada has ruled that a person drunk to the point of unconsciousness cannot consent to sex; the court ruled that once a person loses consciousness, they cannot consent.<ref name="Nova Scotia case"/> There was public outrage after a Canadian judge ruled that an intoxicated person can consent; however, a legal expert interviewed by CBC stated that "a drunken consent is still a consent" under Canadian law.<ref name="Nova Scotia case"/>

In Canada, a judge ruled in the 2011 ''[[R v JA]]'' case that a person who is asleep or unconscious cannot consent to sex.<ref>{{cite news |url=https://www.theglobeandmail.com/news/national/no-consent-in-unconscious-sex-case-supreme-court-rules/article4263384/ |title=No consent in unconscious sex case, Supreme Court rules |last=Mahoney |first=Jill |last2=Makin  |first2=Kirk |date=27 May 2011 |website=www.theglobeandmail.com |publisher=Globe and Mail |access-date=30 June 2018  |quote=}}</ref>

===Position of trust or authority===
When determining if a sexual encounter was consensual, Canadian courts will consider if the accused was in a "position of trust or authority" regarding the complainant, as this undermines consent.<ref name="Nova Scotia case"/> While this general principle is part of Canadian law, the courts are debating exactly what the definition of a position of trust and authority is.<ref name="Nova Scotia case"/> Some examples of people in positions of trust or authority include a teacher, employer or boss, camp counselor, health care professional, or coach.

===Deception and deceit===
{{Main|Rape by deception}}
Sexual encounters where one party uses deception or deceit to obtain consent could be non-consensual.<ref name="Brogaard">{{cite web |url=https://www.psychologytoday.com/ca/blog/the-mysteries-love/201712/rape-deception |title=Rape by Deception: Sexual misconduct by lying or withholding |last=Brogaard |first=Berit |date=26 December 2017 |website=www.psychologytoday.com |publisher=Psychology Today |access-date=23 June 2018 |quote=}} </ref> As such, if A gives consent to have sex with B, but B has lied about a pertinent issue, A has not given fully informed consent. Deception could include false statements about using contraception, age, gender, whether one is married, religion or employment, sexually transmitted infections testing status, giving the impression that one is someone's partner, or that one is single, and falsely making the person think that a sexual activity is some type of medical procedure.<ref name="Brogaard"/> Examples include a California man who snuck into the bedroom of an 18-year-old woman right after her boyfriend left the bedroom, so she thought he was her boyfriend; an Israeli man who lied and told a woman he was a pilot and a medical doctor to have sex with her; and a US man who falsely claimed to be an NFL football player as a way to get sexual encounters.<ref name="Brogaard"/>

In Alexandra Sims' article entitled "Trans people could 'face rape charges' if they don’t declare sexual [[history]], warns trans activist" she states that the UK ''Sexual Offences Act'' requires transgender people to tell partners about their gender history as part of its requirements that people making sexual consent decisions have access to information so that they can make informed consent about whether to have sex; trans activist Sophie Cook states that the law is an infringement on trans peoples' human rights and on their privacy.<ref>{{cite web |url=https://www.independent.co.uk/news/uk/home-news/trans-people-could-face-rape-charges-if-they-don-t-declare-sexual-history-warns-trans-activist-a7076546.html |title=Trans people could 'face rape charges' if they don't declare sexual history, warns trans activist |last=Sims |first=Alexandra |date=11 June 2016 |website=www.independent.co.uk |publisher=Independent |access-date=25 June 2018 |quote=By forcing transgender people to disclose their history to prospective partners the law is not only infringing their human rights it’s also reinforcing the bigoted idea that trans people are in some way abhorrent}} </ref>