Why can't we agree on what consent is?


Last year #MeToo sparked an outpouring of stories and allegations against high profile men, with Time Magazine listing those breaking the silence as persons of the year.

In South Africa, the Dullah Omar Institute and Lawyers for Human Rights ran a campaign revealing just how many of our political leaders have abused women. It is endemic.

What feels different about the Aziz Ansari case, at least on first reading, is that he said he was a feminist.

He argued in support of women’s rights, and even wore a lapel pin at the most recent Golden Globes to support an end to violence.

So how did someone who calls himself a feminist not know that the person he was trying to have sex with did not want to have sex with him? As the Refinery29 headline says – consent isn’t all that common sense it seems.

South African law around sexual offences is built on the notion of consent. I’ve written previously for W24 about what being ‘too drunk to consent’ means, but let’s for a moment talk about what sober consent could look like.

READ MORE: Consent matters - even when you're married

Many people who talk about sexual abuse like to talk about a grey area.

A space where it wasn’t clear whether it was rape or not, or where one person thought it was and the other didn’t. I suggest you watch the helpful video below if you’re unsure what active consent looks like (it’s totally safe for work).

WATCH: Consent is as simple as tea

What the law (The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007) says is that consent means voluntary and un-coerced agreement, and that there are certain circumstances when it is not possible to give consent.

These include where you submit to a sexual act:

•    as a result of the use of force or intimidation by another person;

•    as a result of the threat of harm against you, someone you know, or to your property;

•    where there is an abuse of power or authority by one person to the extent to which the you are inhibited from indicating your unwillingness or resistance to the sexual act, or unwillingness to participate in such a sexual act;

•    where the act is committed under false pretences or by fraudulent means, including where you are led to believe that the person you are having sex with is a different person, or that the sexual act is something other than that act;

•    where you are unable to appreciate the nature of the sexual act, including when you are (at the time of the act) asleep, unconscious, in an altered state of consciousness including under the influence of medicine, drugs, alcohol, or another substance to the extent to which your consciousness or judgement is adversely affected; or

•    where you are a child below the age of 12 years or are a person who is mentally disabled.

These are important categories, at least two of which are applicable in the Ansari case. What they show, is that consent is not simply saying yes once and getting on with it.

They show that consenting to one sexual act (oral sex for example) doesn’t necessarily mean you consent to another.

Active consent is about checking in with your partner, listening when they say no, paying attention to physical cues that send you a message that they are not enjoying it.

At the core is remembering that sex is something that happens with someone else and not just with yourself.

It's about making sure you both enjoy it, and that you both want it to happen.

Disclaimer: The views of columnists published on W24 are their own and therefore do not necessarily represent the views of W24. 

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