Section 273.1 of the Canadian Criminal Code defines consent as, “the voluntary agreement of the complainant to engage in the sexual activity in question. Conduct short of a voluntary agreement to engage in sexual activity does not constitute consent as a matter of law.” It shares a list providing specific situations in which no legal consent is given, including when a complainant is incapable of consenting; if a complainant expresses words or actions of doubt; if a complainant shows a lack of agreement to continue with the act, etc. Northwestern University defines sexual assault as, “Any intentional or knowing touching or fondling by the accused, either directly or through the clothing, of the victim's genitals, breasts, thighs, or buttocks without the victim's consent. Sexual assault includes touching or fondling of the victim by the accused when the victim is forced to do so against his or her will. Sexual assault also includes any nonconsensual acts involving penetration of the sex organs, anus, or mouth.” (Northwestern University Student Handbook 2009-2010)
That’s a lot of words. What does it mean? How does that translate into your partner not wanting to have sex one night? What does that mean for your one night stand after the bar? Where is the line, and how do we draw it?
What if they are asleep?
Consent is a conscious decision. It is a collection of words or actions that show a knowing, active and voluntary agreement to engage in a mutually agreed upon activity. Consent can never be implied, nor can it ever be assumed. The absence of “no” does not mean yes. If someone is unconscious, they cannot give consent. If an individual is asleep or passed out from intoxication, consent cannot be given.
No ifs, ands, or buts.
How drunk is too drunk?
Our education system, and society in general, has failed to adequately address the impact of alcohol on consent. The conversation makes people feel uncomfortable because some feel it ‘blurs’ lines of consent. I am here to shut down Robin Thicke. If someone is drunk, they cannot consent. Not only should this be within your moral compass, but it extends to the legal world. Just like an unconscious person, Canadian law holds that an intoxicated person does not have the capability to consent.
That said, people give consent and engage in sexual acts all the time when they are intoxicated. So when it is ok? When you’ve had a conversation. Is the other person too drunk to effectively communicate? Are they falling asleep, slurring their words or speaking gibberish? Well, you have your answer right there – they are too drunk to consent.
But if you and the other individual(s) can sit down and discuss with what each party is comfortable, and you are sure they are giving consent (that means you have no doubt or uncertainly about their interest in partaking), then go ahead!
No individual should be at risk of a sexual assault just because they decide to drink or do drugs at a party. Our society teaches people to stay sober in order to fend off possible predators, but rather than arming women with tactics to avoid rape, we should be teaching members of our society that rape is reprehensible and should never happen.
What if I was drunk too?
Intoxication is not a defense for rape. Intoxication is not an exonerating circumstance. Failing to recognize that the victim is too drunk to consent is not a defense of sexual assault.
This is what we need to remember: the responsibility for figuring out the other person’s mental state is on the initiator of the sexual act. If you want to get some, you have to be certain that they want to get some too. So if you are too drunk to confidently ascertain this information, you shouldn't engage in these intimate acts.
Can men be sexually assaulted?
There is a common misconception about the involvement and vulnerability of men surrounding sexual assault. Most advertising, educational documents, and media coverage focus on the risk of sexual assault for women, failing to acknowledge that any gender can be sexually assaulted. Comfort levels, intoxication and consciousness affect all genders in the same way and inhibit all genders from consenting.
While certain genders may be more vulnerable to sexual assault (trans women being violently targeted and disproportionately sexually and physically assaulted), all genders need to give consent and all genders can be sexually assaulted.
What if they say don’t say no?
In circumstances where a person can give legal consent, it does not mean they necessarily are consenting. If a person says, “let’s just cuddle” or, “I’m tired”, this is not consent for intercourse. Just because they have not explicitly said “I do not want to engage in sexual intercourse” does not mean that they are consenting or that they ‘just need to be persuaded.’
An absence of ‘no’ does not imply an answer of ‘yes.’
Sometimes I have to convince my sexual partner to partake, is that ok?
Bottom line: consent cannot be given if there is coercion (pressure, intimidate or force), violence, or the threat of violence.
We need to foster nurturing environments and safe spaces so people feel equally comfortable to say yes or no. Consent is, and has always been, such a murky issue because people (often women) tow the line between being a prude or being a tease and often being ‘slut shamed.’ This tension makes women scared to say both yes and no.
As a result, often when women say no, we can be persuaded to say yes, so not as to upset the other party. But this is not proper consent – this is coercion.
You shouldn’t have to pressure someone to hook up with you. If you are going to engage in a sexual act, they should be and eager and willing participant.
What is they say yes but I can tell they aren’t into it?
This is where the concept of enthusiastic consent comes into play. When discussing consciousness or intoxication levels, we look at situations when someone cannot legally consent. But there are also many situations (perhaps more commonly) where people do not enthusiastically consent.
Enthusiastic consent is the notion that you should have no doubt your sexual partner wants to engage in every specific sexual act you have proposed. If your partner meekly says yes, showing signs of doubt, this is not enthusiastic consent. If your partner only says yes after you have tried to convince them, this is not enthusiastic consent.
Ideally, when you ask if they want to get jiggy with it, they should respond with a “hell yes!”
We need to shift our thinking from assuming people want to engage in sexual acts unless they explicitly tell us otherwise, to making no assumptions about our sexual partners preferences and comfort levels. Asking a questions in the bedroom does not ruin the mood, in fact, asking questions makes both parties more comfortable and probably more satisfied. What ruins the mood is an uneasy or upset sexual partner.
If they consent to one thing, they are consenting to everything, right?
For some, engaging in sexual acts is a comfortable thing that they have done for many years, but for others, exploring their sexuality is something new and difficult. As such, communication is crucial; you and your partner need to talk it out. Don’t think that is sexy? Sorry, you need to do it. You know what’s much less sexy? A violated sexual partner.
You need to have a discussion to discover whether all parties to the sexual encounter are in agreement. There can be no assumptions and there can be no inferences.
There is a different between being emotionally intimate, sexually intimate, and intercourse. Just because a person may consent to coming over, it does not mean they want to be intimate. A person may want to cuddle but not to kiss. A person may be comfortable performing oral sex but uncomfortable having intercourse. Bottom line: If you aren’t positive the other person wants to engage in a sexual act, or what they are thinking, just ask. One does not automatically flow into the other. Assuming doesn’t just make you an ass, it can turn a fun evening into sexual assault.
If they consented last week, can I just assume they’ll consent again?
Just because someone consented once to a sexual act does not mean they consent to that sexual act in the future. You need to ensure you have consent each and every time you engage in a sexual act. Yeah, you guys hooked up last week after the concert, but that doesn’t necessarily mean they want to do it again just because you do.
Additionally, if an individual consents to an act, and during the performance of said act the person changes their mind, they are rescinding consent. Just because someone initially consented to an act does not bind them to continue that act or imply they are consenting for eternity.
Remember when there was no such crime for raping your marital spouse? That was based on the notion of implied/assumed consent. It was assumed that because you married someone you want to have sex whenever and wherever with them for the rest of your life. This is no longer the case. The courts have recognized this was wrong, and so should we all. Never assume consent.
If you want to learn a little bit more about consent, it’s not-so-blurred lines, and a few great analogies, check out these great links below.