Sexual 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".

Defining and communicating

Within literature, definitions surrounding consent and how it should be communicated have been contradictory, limited or without consensus. Roffee 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 children 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. Whilst 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

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.

"No means no"

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".

Affirmative: "yes means yes"

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."

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.”Kate Lockwood Harris argues that "...many feminist academic/activist interventions 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."

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).

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."

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", 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, 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".