Sexual consent

File:Slutwalk-knoxville-10-07-11-tn2.jpg

Slutwalk marchers hold signs affirming the importance of sexual consent. Two signs read "No Means No" and another states that the clothes a woman wears do not indicate consent.

Sexual consent is consent to engage in sexual activity. Unwanted sexual activity, or sexual activity without consent, is considered rape or sexual assault. In the late 1980s, academic Lois Pineau argued that we must move towards a more communicative model of sexuality so that consent becomes more explicit and clear, objective and layered, with a more comprehensive model than "no means no" or "yes means yes". Many universities have instituted campaigns about consent. Creative campaigns with attention-grabbing slogans and images that market consent can be effective tools to raise awareness of campus sexual assault and related issues.

In Canada "consent means…the voluntary agreement of the complainant to engage in sexual activity" without abuse or exploitation of "trust, power or authority", coercion or threats. Consent can also be revoked at any moment.

Since the late 1990s, new models of sexual consent have been proposed. Specifically, the development of "yes means yes" and affirmative models, such as Hall's definition: "the voluntary approval of what is done or proposed by another; permission; agreement in opinion or sentiment." Hickman and Muehlenhard state that consent should be "free verbal or nonverbal communication of a feeling of willingness' to engage in sexual activity." Affirmative consent may still be limited since the underlying, individual circumstances surrounding the consent cannot always be acknowledged in the "yes means yes", or in the "no means no", model.

Unable to consent

Some individuals are unable to give consent. Children or minors below a certain age, the age of sexual consent in that jurisdiction, are deemed not able to give valid consent by law to sexual acts. Likewise, persons with Alzheimer's disease or similar disabilities may be unable to give legal consent to sexual relations even with their spouse.

In some jurisdictions, individuals who are intoxicated from alcohol or drugs cannot consent. For example, "Michigan Criminal Sexual Conduct Laws ...declare that it is a crime to have sex with someone while that person is “mentally incapacitated” - defined as being “temporarily incapable of appraising or controlling [their] conduct due to the influence of a narcotic, anesthetic, or other substance" as the "person who is intoxicated is legally unable to give consent to sexual activity".

Deception and deceit

Main article: Rape by deception

"[S]exual encounters involving deceit as a way to obtain “consent” may not in fact be consensual". As such, if A gives consent to have sex with B, but B has lied about using contraception, "...age, gender, marital status, religion or job", "sexually transmitted diseases and infections" testing status, "pretending to be someone’s partner, and falsely making the partner believe that the sexual act is a medical procedure." Even if A gives consent to B in a situation in which B has been deceptive, A has not given fully informed consent. 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 told a woman he was a pilot and a medical doctor to have sex with her; and a US man who claimed to be an NFL football player as a way to get sexual encounters.

Defining and communicating

Within literature, definitions surrounding consent and how it should be communicated have been contradictory, limited or without consensus. Dr James Roffee - a Senior Lecturer in Criminology in the Monash University School of Social Sciences - argued that legal definition needs to be universal, so as to avoid confusion in legal decisions. He also demonstrated 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. 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. Similarly, some minors 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.

Education initiatives

Performers of Catharsis Productions act out scenarios in which a man acts inappropriately toward a woman during the play 'Sex Signals.' The goal of the play is to also help armed forces members understand what consent is and that 'no means no'.

Initiatives in sex education programs are working towards including and foregrounding topics of and discussions of sexual consent, in primary, high school and college Sex Ed curricula. In the UK, the Personal Social Health and Economic Education Association (PSHEA) is working to produce and introduce Sex Ed lesson plans in British schools that include lessons on "consensual sexual relationships," "the meaning and importance of consent" as well as "rape myths". In U.S., California-Berkeley University has implemented affirmative and continual consent in education and in the school’s policies. In Canada, the Ontario government has introduced a revised Sex Ed curriculum to Toronto schools, including new discussions of sex and affirmative consent, healthy relationships and communication. Many universities have instituted campaigns about consent. Creative campaigns with attention-grabbing slogans and images that market consent can be effective tools to raise awareness of campus sexual assault and related issues.

The Guardian reported that Oxford and Cambridge have added sexual consent workshops; one such workshop included a "quiz about the rates of sexual or gender crimes" and a discussion of three fictional "scenarios of sexual contact", including a story of "unwanted groping at a college party", a relationship in which one partner "...sort of withdr[e]w" during a sexual encounter, but as the pair "...had had a lot of sex before so [one person] just kept going" and a case in which a couple was drunk and had sex. The aim of the workshop was to consider “do you think consent was sought and granted here?” in these cases. While Sydney University has introduced an online sexual consent course, Nina Funnell states that it "...has been slammed by students, academics and sexual assault experts as tokenistic", "a cheap ‘tick the box’ online course" that is not seen as "...effective in shifting attitudes or behaviours."

"No means no"

A FEMEN activist holds a sign reading "Non=Non", French for "no=no", at a protest.

The Canadian Federation of Students (CFS) created the “No Means No” campaign in the 1990s to increase awareness by university students about "sexual assault, acquaintance rape, and dating violence" and decrease the incidence of these issues. The CFS developed a “No Means No” campaign that included research on sexual assault and producing and distributing buttons, stickers, posters and postcards with the slogan and other information. According to the CFS, "No Means No” "...encourages a no-tolerance attitude towards sexualized violence and harassment, and aims to educate and promote discussion surrounding sexualized violence and enthusiastic consent."

Concerns about the "no means no" approach developed, however, as "...there are people who aren't in a position to say no, because they are unconscious, intoxicated or... threatened or coerced, especially by those in a position of power." As a result, there was a movement away from 'no means no' to 'yes means yes' (affirmative consent), on the grounds that the "silence or lack of resistance" used under the "no means no" model "is not consent". Amanda Hess states that "people aren't always equipped to shout "No!" when they don't want sex" and a "partner who is asleep or passed out can't say 'no.' Neither can a partner who's frozen in shock or fear when an encounter escalates into an assault."

Affirmative: "yes means yes"

A logo for the "yes means yes" campaign.

Affirmative consent ("yes means yes") is when both parties agree to sexual conduct, either through clear, verbal communication or nonverbal cues or gestures. "Yes means yes" was developed by a group of women at the US liberal arts school Antioch College in 1991, who "...successfully petitioned for a conduct-code amendment that explicitly defined sexual consent as requiring an enthusiastic “yes” from everyone involved. Prior to this, sex was considered consensual as long as neither party said “no.”" (the "no means no" approach). As of 2014, at Antioch College, students must "...get explicit verbal permission before making any sexual advance", asking "'Can I do this?' And the [other] person has to respond verbally, 'Yes.' And if they don't, it's considered nonconsent, and that's a violation of...[college] policy"; a pre-arranged hand signal can also be used if the students made a "prior verbal agreement".

The "yes means yes" approach involves communication and the active participation of people involved. This is the approach endorsed by colleges and universities in the U.S., who describe consent as an "affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity." Claremont McKenna College Dean of Students Mary Spellman says "yes means yes" can be expressed nonverbally by determining "[i]s the [other] person actively participating?...Are they touching me when I am touching them? Are they encouraging me when I'm doing various different things? Those would all be signs that the person is an active participant in whatever is going on."

According to Yoon-Hendricks, a staff writer for Sex, Etc., "Instead of saying 'no means no,' 'yes means yes' looks at sex as a positive thing." Ongoing consent is sought at all levels of sexual intimacy regardless of the parties' relationship, prior sexual history or current activity ("Grinding on the dance floor is not consent for further sexual activity," a university policy reads). By definition, affirmative consent cannot be given if a person is intoxicated, unconscious or asleep.

There are three pillars often included in the description of sexual consent, or "the way we let others know what we're up for, be it a good-night kiss or the moments leading up to sex."

They are:

1. Knowing exactly what and how much I'm agreeing to
2. Expressing my intent to participate
3. Deciding freely and voluntarily to participate

To obtain affirmative consent, rather than waiting to say or for a partner to say "no", one gives and seeks an explicit "yes". This can come in the form of a smile, a nod or a verbal yes, as long as it's unambiguous, enthusiastic and ongoing. "There's varying language, but the language gets to the core of people having to communicate their affirmation to participate in sexual behavior," said Denice Labertew of the California Coalition Against Sexual Assault. "It requires a fundamental shift in how we think about sexual assault. It's requiring us to say women and men should be mutually agreeing and actively participating in sexual behavior." Even in a "yes means yes" paradigm, "[w]hen a partner doesn't ask in a way that welcomes no as an answer, or hears no and pressures or guilts you about it, that's not consent, that's sexual coercion"; other examples include if "your partner whines about their [sexual] needs not being met, gets passive-aggressive or moody when you say no, pesters you 'til you give in, or plies you with booze to get you to change your mind".

In a Time article, Cathy Young states that the California "yes means yes" law "...is very unlikely to deter predators or protect victims", as it will "codify vague and capricious rules governing student conduct, to shift the burden of proof to (usually male) students accused of sexual offenses". Young states that when the San Gabriel Valley Tribune asked a lawmaker, Lowenthal, "...how an innocent person could prove consent under such a standard, her reply was, “Your guess is as good as mine.” A judge overruled a University of Tennessee-Chattanooga "...ruling that a student accused of sexual assault failed to prove he did obtain consent"; the judge wrote that "...[a]bsent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party's consent strains credulity and is illusory". Robert Shibley notes that Jonathan Chait has expressed concern that colleges with "yes means yes" rules are “trampling due process”; Shibley argues that a "...disciplinary system must work fairly, consistently, and impartially to arrive at just results" to ensure "..fundamental fairness and prefer justice to arbitrary and capricious decision-making"; he states that even though college tribunals are "...not courts of law...[,] they involve an allegation, an investigation, a hearing, the presentation of evidence (however defined), fact-finding, the possibility of a sentence that can change the course of the accused’s life (in severe ways), and an appeals process". Shibley states that the "...accused lack very basic protections" and he states that the college does the investigation, judges the case in the trial, and hears the appeal, which means there is not a separation of functions.

Enthusiastic consent

A variant of "yes means yes" consent is enthusiastic consent. Project Respect states that "positive sexuality begins with enthusiastic consent", which they define as "...being as excited and into someone else’s enjoyment as we are excited and into our own enjoyment. Only yes means yes – and yes should come from an engaged and enthusiastic partner." Australia's NSW Minister for the Prevention of Domestic Violence and Sexual Assault Pru Goward has called for an enthusiastic consent, with has been defined as an approach "...that encourages people to make sure the person they're about to have sex with is enthusiastic about the sexual interaction and wants to be there". A sexual assault survivor, who supports the enthusiastic consent model, stated that "...if it's not an enthusiastic yes, then it's not enough." Dr Nicola Henry stated that "legislating and determining "enthusiastic" [consent] in a legal setting would be fraught" (challenging). Benedict Brook defines "enthusiastic consent" as "...“yes mean yes” but with more vim and vigour [and a] constant checking in between partners that all is well."

Gaby Hinsliff, in a The Guardian article entitled "Consent is not enough: if you want a sexual partner, look for enthusiasm", states that "enthusiasm, the unmistakable sense of not being able to keep your hands off each other [in an encounter]...is harder to mistake for anything else. And if it was there, but suddenly evaporates – well, you could always ask what’s wrong. If those two words kill the mood dead, it almost certainly wasn’t the right mood to start with." Another definition for enthusiastic consent is that “[e]nthusiasm as a standard of consent is meant to help clarify the places at which [sexual] initiators unintentionally and sometimes unknowingly cross from sexual experience to sexual assault.”

In Robyn Urback's article "To McGill activists, a 'yes' doesn't mean consent", she states that the "Forum on Consent hosted at McGill suggests that a meek “yes,” or a nonchalant “yes,” or a “yes” without emphatic body language does not constitute consent. According to the panel “It must be loud and clear"". Robert Tracinski asks "how can you tell if she is saying yes with sufficient enthusiasm?" The "enthusiastic consent" model has been criticized by asexual people and sex workers, as people in these categories may choose to have sex with people even though they are not "particularly wanting it or enjoying it themselves". Lily Zheng states that while enthusiastic consent is good theory, it is a "nightmare in real-life intimacy" and she says that since it cannot "...move beyond guesswork, cues and assumptions [it] plays right into normative — straight, white, cisgender, middle-class — ideas about society." Zheng states that the enthusiastic consent model is "so vague" that "determining whether or not a real interaction was “enthusiastic” or not becomes next to impossible", which means it does not work well for Asians, blacks, queer communities and other racial or sexual minorities.

Verbal vs. nonverbal

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, "only verbal consent counts". Dartmouth College's rules on consent state that a "...lot of communication in intimate situations is nonverbal", with "[n]onverbal cues convey[ing] our thoughts and feelings" through "smiling, nodding, and touching"; however, it states that "...body language often isn't enough" because interpreting body language is risky, so it is "best to rely on explicit verbal communication". The New York Times reports that "[m]en tend to rely on nonverbal cues in interpreting consent (61 percent say they get consent via body language), but women tend to wait to be [verbally] asked before signaling consent (only 10 percent say they give consent via body language)", a differing approach that leads to confusion in heterosexual couples' encounters.

Burdo does acknowledge that BDSM situations in which a participant has put on a gag or has agreed to be in subspace make it hard to consent verbally. As well, some people have disabilities which make it impossible to speak and give verbal consent. In cases of BDSM or disabilities, Burdo suggests using "clear, nonverbal consent".

The Daily Dot states that "[v]erbal consent is ideal because it allows both parties to state their wants clearly, and makes it easy to ask questions and clarify if needed"; in contrast, nonverbal consent is "...not always clear", as people "...have different understandings of gestures, “vibes,” and nonverbal cues, which leaves a lot of room for ambiguity and misunderstanding". 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."

Proving consent

Contracts

The advocacy group named The Affirmative Consent Project is providing 'sexual consent kits' at US universities. The kits include a "...contract [which] reads “YES! We agree to have SEX!” and has space for both parties to sign, stating that they "agree to have consensual sex with one another". With the kits, the couple is "...encouraged to take a photo of themselves holding the contract." NYU law professor Amy Adler commented about the depiction of consent contracts in the novel Fifty Shades of Grey; she states the signing of the “legal contract...in Fifty Shades of Grey—it’s kind of [the model of] what a lot of affirmative-consent people are looking for"; "[m]aybe we should have written, contracted-for sexual exchanges on campus in order to avoid the messiness and possibility of error that could result in rape.” In Emma Green's article about the film, entitled "Consent Isn’t Enough: The Troubling Sex of Fifty Shades", she disagrees with consent contracts as a solution on the grounds that "...even explicit consent isn’t always enough to encourage emotionally healthy sexual encounters...in booze-soaked college environments, full of relatively sexually inexperienced young people, [on] what constitutes consent".

Consent apps

In the 2010s, smartphone apps have been developed to give couples the ability to electronically consent to sexual relations. Apps include We-Consent, Sa-Sie, LegalFling and Good2Go. LegalFling is a "blockchain-based" app that is "populated with each party’s terms and conditions", such as requiring condom use. However, concerns have been raised about these "consent apps". The Good2Go app "provide[s] users with recorded proof of sexual consent that could be produced in evidence if necessary. All a man had to do was get his partner to type the answers to some simple questions – including how drunk she was – into his mobile phone"; however, the app was "pulled within weeks, not just because men hated the idea, but women did too." A lawyer states that "from a legal perspective these [consent] apps are almost entirely redundant" and "would surmount to no more than circumstantial evidence", because "a lot of these apps do not take into consideration a person’s right to withdraw consent at any time."

In Reina Gattuso's article entitled "Seven reasons consent apps are a terrible idea", she criticizes consent apps on the grounds that: "[c]onsent can be withdrawn at any time", including minutes after clicking yes on the app; "[c]onsent can be more complicated than a simple yes or no answer"; "[c]onsent is not about liability. It’s about equality"; it is not feasible to make a "...legal contract between every shift in [sexual] activity"; concerns about "tech companies make wild dough off your data"; unduly focusing on "...consent as a legal or evidentiary standard" and looking for an "easy out" for "what is in actuality an active, ongoing, lifelong process of learning to respect other people’s bodies and communicate boundaries". Cricket Epstein states that using consent apps "relies on the logic that the person bringing an allegation is falsely reporting. This logic fuels victim-blaming", and then "[p]roving that consent was revoked, that a certain sexual act was not agreed upon, or that consent was given only under coercion, may be harder to prove once a[n app] contract is involved"; she states that app "contracts...further protect perpetrators".

Other views

Legal scholar Robin West stated in a 2000 article that the “...ethic of consent, applied evenhandedly, may indeed increase the amount of happiness in the world, but women will not be the beneficiaries.” She states that "...much of the misery women endure is fully "consensual", such as "unwanted pregnancies, violent and abusive marriages, sexual harassment on the job", since they consented to the sex, marriage or job, respectively. West states that an "...ethical standard which ties value to the act of consent by presumptively assuming that people consent to their circumstances so as to bring about their own happiness—and by so doing thereby create value—leaves these miserable consensual relationships beyond criticism."

Kate Lockwood Harris argues that "...many feminist academic/activist interventions" for consent, such as "no means no" and "yes means yes" use false ideas about communication, what I call communication myths: discourse merely reflects reality, and local discourse is disconnected from larger social Discourse"; by "suggesting communication should be unambiguous during consent, anti-violence educators/activists lower the standard for communicative competence, disconnect it from historical-cultural context, and miss opportunities to politicize consent."

Ezra Klein supports California's "yes means yes" law for the state's colleges on the grounds that the number of "...sexual assault victims is "far too high," so high as to justify "sweeping" and "intrusive" legal measures–specifically, California's new law." While "..the law intrudes on "the most private and intimate of adult acts", Klein states that the law's "overreach is precisely its value", as it will create "a haze of fear and confusion over what counts as consent" and college men will "...feel a cold spike of fear when they begin a sexual encounter". Klein states that cases "that feel genuinely unclear and maybe even unfair", where "too much counts as sexual assault" will then lead to "necessary change", this being a reduction in sexual assaults. Freddie deBoer states that "If we universalize affirmative consent", it could "unleash a lower standard onto police and prosecutors ... incapable of avoiding racial or class prejudice", which could lead to action falling unfairly "on people of color and working class students in our universities."