Sexual consent
Sexual consent is consent to engage in sexual activity. In many jurisdictions, sexual activity without consent is considered rape or other forms of sexual assault.
Academic discussion of consent
In the late 1980s, academic Lois Pineau argued that society 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. The Supreme Court of British Columbia ruled that badgering alone, followed by an agreement, does not meet the threshold of coercion to vitiate consent.
Since the late 1990s, new models of sexual consent have been proposed. Specifically, the development of "yes means yes" and affirmative and ongoing models of consent, 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.
Elements of consent
Moral and legal perspectives
Within the scholarly 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, argues that legal definition needs to be universal, so as to avoid confusion in legal decisions. He also demonstrates 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.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. People may also consent to unwanted sexual activity.
Implied and explicit
In Canada, implied consent has not been a defence for sexual assault since the 1999 Supreme Court of Canada case of R v Ewanchuk, where the court unanimously ruled that consent has to be explicit, instead of merely "implied". In the United States, the defense may have a chance to convince the court that consent was in some way implied by the victim. Many actions can be perceived by the court as implied consent: having a previous relationship with the alleged rapist, consenting to sexual contact on previous occasions, flirting, or wearing "provocative" clothing.Unwanted sexual activity
Unwanted sexual activity can involve rape or other sexual assault, but it may also be distinguished from them. Jesse Ford, the author of a 2018 study that showed that men are having unwanted sex with women to "prove they are not gay", states that "ll sexual assault is unwanted sex, but not all unwanted sex is sexual assault."A 1998 study showed that both men and women "consen to unwanted sexual activity" in heterosexual dating; in these cases, they consented to unwanted sex to satisfy their partner, "promote intimacy", or avoid tension in the relationship. The authors argue that estimates of "unwanted sexual experiences" may confound nonconsensual sex and consensual sex.
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, the maxim "only verbal consent counts" is limited, in that it fails to accommodate parties that can only consent non-verbally, such as people with disabilities and those in BDSM communities. 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, but women typically wait till a partner verbally asks them before they indicate consent, a differing approach that may lead to confusion in heterosexual couples' encounters.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 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, "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."
Age
below a certain age, 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.Jennifer A. Drobac, who teaches law at Indiana University, states that young adults aged 16 to 21 should only be able to "offer "assent" to sex with a significantly older person", rather than consent, but then "permit them to revoke that assent at any time".
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. Law professor Deborah Denno argues that people with some types of mental challenges should be able to consent to sex; she says they "...have the right to do so, and unnecessarily broad and moralistic restrictions infringe upon that right".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 judge ruled in the 2011 R v JA case that a person who is asleep or unconscious cannot consent to sex.