What Consent Is and What It Isn't
3 Nov 2015
The Crown Prosecution Service (CPS) recently launched its #ConsentIs campaign and BBC Three has asked Is this Rape? in a programme aimed at finding out what British teenagers do and don’t know about sexual consent.
It seems interest in and discussion of consent has become more widespread and mainstream in recent years and months, and not before time.
Despite the law that most recently defined sexual consent in England and Wales now being over a decade old, there is still confusion among people of all ages about what it actually means.
So what is consent when it comes to sex?
Not a ‘grey area’
According to section 74 of the Sexual Offences Act 2003, someone consents when she or he "agrees by choice…and has the freedom and capacity to make that choice."
That’s a clear definition.
And there are some equally clear examples of when someone doesn’t have "freedom" or "capacity" to agree by choice or to "consent".
For example: if someone is under the age of 16, they don’t legally have the capacity to consent to sex. If someone is asleep or unconscious, they don’t have the capacity to consent. If they’ve been kidnapped or held against their will, they don’t have the freedom to consent.
An enthusiastic, freely given ‘yes’
Because freedom and capacity are central to the definition of consent, someone saying "yes" to sex doesn’t automatically mean they’ve consented. If someone is in an abusive or exploitative relationship, for example, they might say "yes" out of fear for their lives, or for the lives or well-being of family or friends, which is far from "freely". Being coerced, bullied, scared, shocked or threatened takes away our freedom and capacity to make choices in lots of different situations.
Occasionally, people respond angrily or irritably to being told that the word "yes" doesn’t necessarily indicate consent when it comes to sex; surely that’s doublespeak, when not even "yes" means "yes" anymore, right?
And yet most of us would recognise that if someone stands behind you at a cash machine holding a knife in your back, asks for your PIN number and you give it to them, you aren’t consenting to being robbed.
Yours to give, refuse or take back at any time, every time
Though rape within marriage was only legally recognised in this country in 1991, the law is now thankfully explicit that you don’t give up the right to decide what you do and don’t do with your own body when you enter a marriage or civil partnership contract.
Likewise, having consented to sex with someone once or even several times in the past doesn’t mean you’ve consented to sex with that person indefinitely. Consent is not like a physical permit that, once issued, we can save for use at a future date. The person who willingly and enthusiastically had sex with us last night might not want to have sex with us this morning and that’s their right and prerogative.
The law is also very clear that a person can give their consent to one kind of sexual activity but not another in a single situation. For example, someone might consent to vaginal but not anal penetration, or they might consent to sex with a condom but not without one. Again, this is common sense.
Finally, it is equally true in both the law of the land and the law of basic human decency, that a person has the right to withdraw their consent at any point during sexual activity. If you’re in a sexual encounter with someone and they ask you to stop and you don’t stop, you’re committing a sexual offence. It’s as simple as that. And if they lose their freedom or capacity during a sexual activity they’ve previously consented to – for example, if they pass out – the same applies: you need to stop.
Sought as well as given
There are lots of things that consent is not. It’s not implied by and cannot be assumed because of the clothes that you wear, or the fact that you like a drink or a flirt, or have had lots of sex in the past with lots of different sexual partners, or because you sell sex, or because you’ve flirted with someone, or kissed them, or gone back to their flat for coffee.
None of these factors add up to consent to a specific sexual act with a specific person.
Likewise, silence is not consent nor is the absence of a physical struggle. In fact, quietness and stillness might suggest a lack of those crucial elements of freedom and capacity; they might indicate the freezing or flopping reactions our bodies sometimes have to fear, shock or trauma, for example, or that we’re too drunk to control our speech or movement. Silence and stillness certainly don’t suggest the enthusiasm we should be aspiring to receive from a sexual partner.
So, if in doubt about whether consent has been given, check. It’s all of our responsibilities to seek a partner’s consent and to be confident we’ve received it before we engage in any kind of sexual activity with them. That doesn’t mean that we have to get them to sign a contract, it just means we need to communicate, ask, check in with the other person. And if we’re still in doubt, for example, if they’re really drunk and we’re not sure whether they’re capable of consenting to sex, it is our responsibility to stop.
In the words of a current social media campaign, #ConsentisEverything. It is respect, it is decency, it is empathy and it is the cornerstone of a good, healthy sexual encounter.