Understanding Consent – an explainer

We have a murky understanding of consent. This is partly why there was explosion of responses to the Grace/ Aziz Ansari incident that took place earlier this year, as well as the #MeToo movement which began last year. The Daily Vox spoke with Crystal Dicks, director at the Gender Equity Office at Wits University to better understand the issues raised by these important moments.

What is consent?
Consent means “to agree” or “to grant permission” for. However in instances of sexual harassment/activity consent takes on a more nuanced meaning. Here both parties have to consent for a sexual activity to be legal. Most critically, it only constitutes consent when the agreement is voluntary and when the persons involved have the freedom and capacity to make that voluntary choice.

You don’t have freedom when you are in a relationship of unequal power; when you are drunk, drugged, asleep or unconscious; if you are a minor you don’t have the legal capacity to consent to sex nor the freedom to do so, given your diminished position of power. These examples therefore legally, do not constitute consent.

What are some of the myths around consent?

  • Sexual harassment cannot happen in a consensual relationship like in a marriage.
  • Submission means consent. (When you submit to giving your key to a hijacker at 3am in the morning you are not consenting to them taking your car.)
  • She says no, but she means yes.
  • Sexual assault is always physically violent and therefore the victim should have been heard.
  • She participated in flirting and is therefore culpable.
  • If a perpetrator is found “not guilty” it means the incident never happened and not that it wasn’t proven to have happened.

All of these are untrue. Sexual engagement is only consensual if consent is given.

When is there NO consent?
There is no consent when an agreement is expressed by the words or conduct of a person other than the complainant; the complainant is incapable of consenting to the activity because they are asleep, intoxicated, unconscious, mentally unwell or if the complainant is a minor; an accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; a complainant, having consented to engage in sexual activity prior, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

What kinds of consent are there?
In law there are different kinds of consent. There are two broad kinds used most often; expressed – which is explicit – and implied consent. Implied consent is based on a presumption that consent was given by signs, actions, body language, dress, inaction or silence. Perpetrators of sexual offences and their protectors have drawn on implied consent for defending their actions, but this has no legal weight.

Applying legal conceptualisations of consent to instances of sexual offences/activity is profoundly problematic because the law makes no provision for implied disapproval. Individuals who persist despite disapproval (explicit or otherwise) are not held accountable for their actions. For the benefit of discussing consent in instances of sexual offences/activity, any behaviour or conduct that is not by choice does not constitute consent.

No one should presume anything in instances of sexual engagement. Everyone should communicate their intentions and desires and ensure that consent is freely given.

Would you say that people understand consent?
No. It’s hard in a society where sexual offences/assault is normalised and where patriarchy induces a culture of male entitlement. Further, for men, where a situation emerges that they have either been in or can imagine themselves being in, they will resist. Not only with counter arguments – like implied consent – but also in violent and outrageous ways.

Do women have trouble saying no?
This is a troubling question. It assumes or plays into the widely held perception that women do not exercise their agency and are weak, submissive and do not know what it is they want/are willing to engage in/accept.

Patriarchy and societal norms create the conditions for women to respond in a particular way. We are socialised into a culture that says and sets a number of problematic gender stereotypes; men are the ones with desire, women are inherently submissive beings that don’t possess the ability nor desire to disagree or disapprove, women say no, but don’t actually mean it, they just like playing hard to get, let men down easily, etc. Overall, women are not understood as agents who can speak for themselves thus women internalise these perceptions. Its also because of the fragility and lovelessness that’s pervasive in our homes and society, many women seek love, romance and intimacy in ways many men don’t or in ways that are different to men.

What do you think is important about understanding consent?
The most critical issue around consent is that far more work is needed on how normalised sexual violations have become. We blink at beatings, at cat calling, at grooming, at repeated sexual advances. Families, schools, religion, pop culture, parents and friends teach us that it’s normal to treat women differently. So why not violate her boundaries when seeking sex? Why not repeatedly ask? Why not wear her out? As an extension of this, society and all its manifestations, repeatedly places the responsibility on women to be in a particular way rather than on men not to be warning women to be careful, watch how they dress, etc.

What do you wish people (especially women) knew about consent?
People and women especially need to understand gendered privilege and how it manifests. Women need to understand that for as long as gender privilege exists – in the same way class and racial privilege does – there is a concerted need to fight it, expose it and challenge its defenders and protectors.

What can we do to educate people about consent?
We need a society that is sensitive to the interrelated hierarchies of power, dominance, and exclusion that sees male privilege manifest in incredibly gendered violent ways. A society that understands the violence that is so prevalent everywhere around us and one which believes complainants of gender-based violence (GBV), and that holds perpetrators of GBV accountable. We need more complainants speaking out and sharing their stories. There needs to be more open, critical spaces for conversations on GBV, male privilege and consent. We need our schooling and post schooling sectors to include education on GBV and consent in particular as compulsory elements in all curricula. We need a national media narrative that speaks to these issues not only when there’s a big story, but all the time.

Edited for length and clarity.

Featured image via Flickr