Your body, your rules: a brief introduction to consent

By Jennie Williams, legal consultant and human rights lawyer

Consent is a complex matter involving many emotive and conflicting ideas that affect a multitude of issues involving the governance of women, sex, gender, society, legislation and politics.

This is a very brief but important synopsis, and although this is written in the context of primarily females, it is transferable to all genders and sexual orientations. 

Consent is a complex matter involving many emotive and conflicting ideas that affect a multitude of issues involving the governance of women, sex, gender, society, legislation and politics. This is a very brief but important synopsis.

Consent means to give permission for something to happen or agreement to do something. But it also means to have the free will to say no. It is about making a decision knowing one’s own mind, but with the ability to recognize the impact of numerous determinants including external factors ie economic forces and circumstances. As these factors change, so can consent. Consent, therefore, sits on a spectrum fluctuating between informed, coerced and forced.

Consent is often mistaken as once given or obtained for a certain situation, is then presumed to continue for perpetuity. This is wrong. Consent is a decision given based on an acknowledgment that a person has the right to change their mind according to evolving circumstances as they are perceived. Consent given by a woman or man, therefore, must be re-evaluated by both parties during these times of change in the event it has changed or been withdrawn.

Unfortunately, placing consent in a sexual context seems to obscure its true meaning and validity, as can be seen in numerous rape cases of sleeping or comatose women, or sex workers who have agreed to one sexual act but are forced to commit another. In these circumstances, men have often successfully claimed that unlimited consent exists due to a presumption or expectation of it being previously provided, or an absence of refusal.

Placing consent in a non-sexual context may clarify things somewhat. For example, you ask someone if they would like a cup of tea and they agree, so you make them a cup. However, upon your return they have fallen asleep, but you do not proceed to pour the tea down their throat thinking and presuming they still want it. Similarly, if they change their minds when you present the tea to them, and want water instead, you don’t force them to drink the tea. Or, if you unilaterally decide to make them coffee instead, you don’t insist they consume it. To present it in this form, it seems absurd to continue to presume consent exists. A change in circumstances requires an automatic and immediate reassessment of the existence of consent and under no circumstances should it be ignored or presumed.

Affirmative, conscious, and voluntary agreement to engage in whatever activity, whether this is a sexual encounter, or a form of employment for example, is crucial. A lack of protest, resistance or silence, does not mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time and for any reason.

This is absolutely critical for all parties to understand, particularly against a steady and continuous backdrop of legal cases on sexual assault that either ignored or considered women’s consent to be acquiesced simply based on negatively judgmental factors including being a prostitute / drunk / unconscious / sexually active / wearing revealing clothing etc. All of these factors are entirely irrelevant to the facts of the act in question and the liability of the perpetrator’s behaviour and state of mind, that has, and continues to, allow men to act with impunity as to the consequences. Failing to ascertain the presence of consent can be the difference between, for example, a mutually agreeable act of sex and rape, or being smuggled and trafficked.

It is important to note here that forced consent, including any act of physical or psychological violence against a woman, using threats, fraud or the endorsement of lies and misrepresentation to induce consent, whether that allegedly involves her consent, is a crime and has no legal basis. If you are forced, then you are not consenting as there is no freewill involved.

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