Sexual consent

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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, or even if they can verbally indicate that they consent, they are deemed to lack the ability to make informed or full consent.

Age

Main article: Age of 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. The age of consent is the age below which a minor is considered to be legally incompetent to consent to 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.

Mental disabilities or conditions

Likewise, persons with Alzheimer's disease or similar disabilities may be unable to give legal consent to sexual relations even with their spouse. 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. South Carolina has a 10 year penalty for a person who has sex with a person who is mentally challenged or incapable of movement.

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.

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. 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. 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.

In Canada, a person who is asleep or unconscious cannot consent to sex.

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. 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. 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 article: Rape by deception

Sexual encounters where one party uses deception or deceit to obtain consent could be non-consensual. 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, and falsely making the person think that a sexual activity is some type of medical procedure. 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.

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 the law is an infringement on trans peoples' human rights and on their privacy.

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 groping at a party, a relationship in which one partner stopped participating, but the other person, who was sexually excited, continued to proceed to new sex acts, and a case in which a couple was drunk and had sex. The aim of the workshop was to consider if consent was asked for and obtained in these scenarios. While Sydney University has introduced an online sexual consent course, Nina Funnell states that it has been criticized by students, professors and sexual assault prevention leaders as "tokenistic", inexpensive, and ineffective in changing student attitudes or actions.

"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” to set in place a no tolerance approach to sexual violence and harassment and educate students about these issues.

Concerns about the "no means no" approach developed, however, because some people cannot say no, either because they are not conscious, intoxicated or facing threats or coercion, with the coercion issue being especially important in cases where there is a power imbalance between two people in a sexual encounter. To address these concerns, there was a shift from 'no means no' to 'yes means yes' (affirmative consent), to ensure that people were not having sexual actions taken on them due to not speaking up or not resisting. Amanda Hess states that a person may not be able to say no, or they may be intoxicated or passed out, or they may freeze up from fear.

Sherry Colb criticizes the “no means no” approach on the grounds that it makes sexual contact the "default" option when two people have agreed to be in private in a date-like situation, at least until the woman says "no" to the other person's advances. Colb says that under the "no means no" approach, a man who is in private with a woman in a romantic context can undress her and penetrate her if she does not say "no", even if she is staring ahead and saying and doing nothing, which Colb says treats being quiet or not moving as an invitation to sex. She says that under a "no means no" approach, there is not a metaphorical "Do Not Trespass" sign on a woman's body, and as such, women have to fear that accepting a date and being in private with the partner could lead to unwanted sex.

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. With "yes means yes", a person can still say "no" after an initial yes. "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. Denice Labertew of the California Coalition Against Sexual Assault says that while the words used in "yes means yes" may vary, the main idea is that both people are agreeing to do sex acts. She says that "yes means yes" requires a major change in how we think of sexual assault, as it requires men and women to agree to and actively participate in sex. Even in a "yes means yes" paradigm, if a partner asks in a way where there is not room or a "no", or if they get a no and then use guilt to manipulate the person, that can be considered sexual coercion rather than consent; other examples include if a partner seeking sex complains that their need for sex is not being met, shows passive-aggressive behaviour, or persistently asks again and again until they get a "yes". Conn Caroll states that social conservatives may support the "yes means yes" laws, as the increased risk of being found guilty of sexual misconduct will lessen student interest in "hook up culture" and create an incentive for men to form long-term, committed relationships with women, rather than just seeking out one-night stands.

In a Time article, Cathy Young states that the California "yes means yes" law is unlikely to make sexual predators less likely to attack or keep victims safe; she says it creates unclear and capricious rules on sexual activity and moves the burden of proof to those who are accused, who are typically male. Young states that when the San Gabriel Valley Tribune asked a lawmaker how an innocent accused person could prove that he obtained consent, she was told “Your guess is as good as mine.” A judge overruled a University of Tennessee-Chattanooga ruling that a male student did not 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 removing due process; Shibley argues that fairness and consistency are needed in disciplinary systems; he states that even though college tribunals are not law courts, they still have elements of court trials, as they are based on an allegation, an investigation is done, a hearing is held, evidence is brought forward, sentences are handed down, and there is an appeal that can be made. Shibley states that accused do not have core 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. Camille Paglia calls "yes means yes" laws "drearily puritanical" and totalitarian.

In "When Saying ‘Yes’ Is Easier Than Saying ‘No’", Jessica Bennett says that one challenge is "gray zone sex" where a woman says yes to an initiator in a sexual encounter when she "desperately" means "no", engaging in what she calls "begrudgingly consensual sex" because saying yes is easier than explaining a "no" or exiting the situation, and because Western culture teaches women to be "‘nice’ and ‘quiet’ and ‘polite" and to "protect others’ feelings" at the expense of the woman's own feelings and desires. Julianne Ross states that in a Western society where sexual narratives focus on male desire, what women want can be deemed less important; as such, in this context, women in heterosexual encounters may feel a pressure to say yes to certain sex acts for fear that they may be criticized as a "prude" if they do not agree, or because the women want to fit into social expectations in their group, or because they are seeking validation.

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 helps to ensure that both participants want to be in the encounter. 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” with more vigour and with "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"".

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", which means it does not work well for Asians, blacks, queer communities and other racial or sexual minorities. 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". Julianne Ross states that consenting adults may have sex that they both want to have without giving "enthusiastic consent", such as couples having sex to get pregnant or couples who want to please each other. One challenge with getting people to give enthusiastic consent in the bedroom is that women may be reticent to speak about their sexual desires because of a fear that they may be "slut-shamed". Robert Tracinski asks "how can you tell if she is saying yes with sufficient enthusiasm?"

Verbal vs. nonverbal

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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, "only verbal consent counts". 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". 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.

Burdo does acknowledge that BDSM situations in which a participant has voluntarily 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 speech-affecting disabilities, Burdo suggests using "clear, nonverbal consent". 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."

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 is may not be clear, as people "...have different understandings of gestures, “vibes,” and nonverbal cues", which can lead to "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."

Showing consent

Contracts

The advocacy group named The Affirmative Consent Project is providing 'sexual consent kits' at US universities. The kits include a contract where the parties ca sign, stating that they consent to having sexual relations. The kits suggest that the couple take a photo of themselves holding the contracts. 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 before sex could help to avoid uncertainty in sexual encounters. 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" may not be enough in hard-drinking college dorm environments where most students have little experience with negotiating sexual permission.

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 uses blockchain and sets out each person's terms and conditions, such as requiring condom use or agreeing to specific acts. However, concerns have been raised about these "consent apps". The Good2Go app gives a record of sexual consent that the company claims can be used as evidence of consent and capacity, from an intoxication perspective, for consent; however, the app was removed from sale because both men and women did not like clicking on a smartphone in the bedroom to record their consent. A lawyer states that legally, apps are redundant and could only serve as circumstantial evidence, because they generally do not take into account a person's right to withdraw consent at any point in the sexual interaction.

In Reina Gattuso's article entitled "Seven reasons consent apps are a terrible idea", she criticizes consent apps on the grounds that: a person can withdraw consent at any point, including minutes after clicking yes on the app; the binary yes or no approach of the apps simplifies the complexity of consent; the app cannot legally confer agreement to each change in sex acts; they make consent too much about legal proofs and setting down evidence; and they change what should be a continuous process of communication into a quick action. Cricket Epstein states that using consent apps have a "victim-blaming" mentality that suggests that the person who is asked to click on the app may become a false accuser; as well, she says the app may protect perpetrators, because once agreement is clicked on the app, it will be harder for a complainant to say that she or he had sex acts done without consent.

Other views

Legal scholar Robin West stated in a 2000 article that the use of consent as an ethical premise for life decisions may increase happiness in the world, except for women. She states that women technically consent to many of the life experiences that lead to misery for women, such as pregnancies they did not wish to have, marriages to spouses who beat them, or jobs where a boss sexually harasses them, since they consented to the sex, marriage or taking the job, respectively (even if they did not want the adverse results, such as on-the-job harassment). West states that if we make consent the key ethical standard in life, then all of these negative experiences for women will be not able to be criticized, as people will say that the woman chose of her own free will to enter that situation. In "Why Yes Can Mean No", Jordan Bosiljevac states that "yes" does not necessarily mean consent for "...poor, disabled, queer, non-white, trans, or feminine" people; she states that consent approaches are a form of privilege created for well-to-do, hetero, cis, White, able-bodied people.

Kate Lockwood Harris argues that consent initiatives, such as "no means no" and "yes means yes" use views about communication which she sees as false myths, such as the claim that communication during sex can and should be a binary, unambiguous "no" or "yes". Harris states that by calling for this type of response, anti-assault advocates are lowering the complexity of communication competence between the two people and lessening the opportunities to make consent a political act.

Philip Henry states that non-consensual groping of bottoms and crotches is tolerated in some gay bars.

Ezra Klein supports California's "yes means yes" law for the state's colleges on the grounds that there are too many sexual assaults; as such, he endorses broad new legal measures like California's newly created law. While he acknowledges that the law impinges on the personal sexual lives of people, he says that to work, the new law needs to have "overreach", so that it will create a "cold spike of fear" among college men about whether a sexual encounter is consensual. Klein states that cases where it is unclear whether consent was or was not given will be a necessary part of the law's effectiveness, as these cases will help to reduce sexual assaults, as students become aware of the disciplinary process and the consequences for those found guilty. Freddie deBoer states that if "yes means yes" becomes widespread, it would lead to a lower standard of proof being available to law enforcement and justice institutions which have thus far shown evidence of using racial or class-based prejudice when assessing and trying cases (e.g., driving while black); this could lead to "yes means yes" charges and punishments falling disproportionately on students of color or those from working class backgrounds.

Philip Henry states that the male gay community tolerates and even encourages non-consenting grabbing and groping of butts and crotches in gay venues because the boundaries of consent are blurred in the gay club environment, particularly when there is drinking and semi-nude patrons dancing. He says that when a gay man does experience unwanted groping and expresses concern, he is often told to "calm down" or that groping "comes with the territory” in a gay venue. Gay men in the chemsex scene, where couples or groups consume GHB or crystal meth prior to extensive sex, have stated that consent is not clearly defined and there can be a perception that anyone at a "party and play" get-together is assumed to consent. In "Discussing Consent in Gay Spaces Requires Nuance, Not Sex Panic", Rennie McDougall states that adding modern consent approaches to gay spaces such as gay bars and saunas would have a negative effect on gay men's sexual interactions, because non-consensual but non-threatening hands of a stranger on a bottom, chest or crotch can be a "positive part of sexual discovery" for gay men.

Further reading

• Archard, David. Sexual consent. Westview Press, 1998.
• Cowling, Mark. Making Sense of Sexual Consent. Routledge, 2017.
• Ehrlich, Susan. Representing Rape: Language and sexual consent. Routledge, 2003.
• Primoratz, Igor. "Sexual Morality: Is Consent Enough?". Ethical Theory and Moral Practice. September 2001, Volume 4, Issue 3, pp 201–218.
• Refinetti, Roberto. Sexual Harassment and Sexual Consent. Routledge, 2018.