Consent

From Encyclopedia of Sex and Sexuality

“Between consenting adults” has become one of today’s defining terms for acceptable sexual behavior. However, in some situations, the line between what has been consented to and what has not is unclear. In a legal context, to be legitimate, consent must be voluntarily and freely given, without compulsion or duress, by a person who is legally capable of consenting, and it must be obtained without fraud or trickery.

The question of whether, in fact, consent was given may arise in a number of legal contexts including acquaintance rape, in which the victim knows the alleged attacker: statutory rape, in which minors are assumed to be incapable of knowledgeable consent: or rape within a marriage, in which the relationship between husband and wife may imply some degree of consent. The issue of consent is also often involved in allegations of sexual harassment in the workplace and molestation of children (see also Child Abuse; Child Molestation Laws; Date Rape; Rape).

Rape is generally defined by state statutes as sexual intercourse with someone without that person’s effective or reasoned consent. This means that rape is not just intercourse with the use of force. Intercourse with a person who has a mental impairment that makes effective consent impossible is rape. Similarly, minors, usually those under the age of 16 or 18, depending on the state’s laws, are also considered to be incapable of giving effective consent to intercourse.

When force is involved in making a woman submit to sexual intercourse, the issue of rape is clear. But some women do not think of themselves as victims of rape if they have been out “partying” and are pressured into sex when intoxicated or under the influence of drugs and are unable to respond in a fully conscious way to such advances.

At least 1 in every 4 women in America will be the victim of a rape in her lifetime. Studies estimate that over 90 percent of women who have been sexually assaulted do not report it to the police. About 40 percent do not tell anyone.

Although the trend is changing, most rape statutes in the past provided that a husband could not be deemed to have raped his wife. Several states have revised their rape statutes so that a husband can be prosecuted for raping his wife. Prosecution under such statutes, however, presents the problem of proving a lack of consent in a situation that typically occurs in the seclusion of the marital bedroom.

In the absence of clear use of force, the issue of consent in alleged cases of date rape has invariably resulted in controversy. Did one’s partner say “no” but mean “yes”? Did one’s partner communicate consent through past behavior? Through signals? By the way she dressed? Was one party enticed, so that the result should have been expected?

While some of these questions may confuse the issue, one way to clarify the issue is to remind yourself that you have the right to refuse any type of sexual contact at any time or place and at any stage in a relationship, regardless of the level of arousal that may exist in a would-be partner. There is no such thing as a point of no return, a point at which one no longer has the right to decide what will be done to one’s body. “No” means No.

This may be a difficult concept for some to accept, when a woman voluntarily places herself in a situation in which she fears she can be seen to be “asking for it.” In such a situation it may be helpful to acknowledge that a partner is entitled to some frustration or even anger at being told “no.” One’s partner has a right to his or her own feelings. But their rights stop where their partner’s personal space begins. While we all have the right to express disappointment, we do not always have a right to impose our will, and sexual intercourse is one of those situations. “No” means No.

Under American law, a person has a right to a work environment free from “unwelcome” sexual communication or solicitation of sexual contact. The employee’s acceptance or rejection of such behavior may not be a basis for an employer’s refusal to hire or decision to discharge or otherwise discriminate against an individual in the workplace. This means that even if an individual does not lose a job or potential job opportunity, but is forced to endure verbal or physical abuse as a part of their workplace, they would have a claim arising from the hostile environment permitted by the employer. On the job, your job performance should be the sole basis for your evaluation, not your compliance or acceptance of sexually offensive behavior. Some employees hesitate to express their feelings because of fear of retaliation, and sometimes they may tacitly consent through silence. The law shields employees from retaliation in such cases and employees should educate themselves regarding their rights so that they can better exercise their right to say “No.”