Consent & Refusal

Objectives

Any sexual activity without consent is assault and a criminal offence. Some people, however, don’t understand the importance of consent. Even those who understand it’s importance may get confused when facing a situation in reality. So how should you ask for consent? or how do you know you’ve received someone’s consent? Is it saying the words “Yes, I want to”. Or is it enough to just not say “no”? Is submission the same as consent? What happens if someone changes their mind after it’s begun? If your not sure about the answers to these questions you need to read this article. We’re going to cover the range of international laws and regulations and introduce some real life cases to explore the scope and direction of the issue of consent.

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Sexual Self-Determination : refers to the right for everyone to establish their own values around sex and sexuality, to make their own decisions regarding their bodies

“Reproductive health and rights also depend on timely, comprehensive sexuality education that allows adolescents and young people to learn about their bodies, understand relationships, make informed decisions about their sexuality, and stand up against sexual harassment, exploitation and abuse.” United Nations

Sex, Your Choice and Your Decision

✔️ Age of Consent

The age at which one is considered legally capable of giving consent.

- In many countries any sexual activity with someone under the age of consent is considered a crime. In South Korea sex, or any sexual act, with a minor under the age of 16 is illegal, regardless of the minors consent. - Some countries specify different restrictions for different sexual acts, such as Hong Kong, where the age of consent for receiving anal sex is 21 for women and 16 for men. - Many countries impose higher ages of consent for when the adult is in a position of care or authority over the minor. In Australia the age of consent rises to 18 if the older participant is a teacher, legal guardian, clergy member etc. - Some countries also have a ‘close in age exemption’. In Germany the age of consent is 14, but only if the consensual partner is under the age of 16. Otherwise, the age of consent is 16.

Ages of consent around the world range from 12 to 21, but their inclusion in law demonstrates a universal aim to protect children from abuse and harmful consequences they may not be fully aware of.

✔️ Consent or Refusal

Expressed Consent 👌

- You can agree to sex by verbal or nonverbal means. - If anything is vague or unclear, confirm with your partner by questioning and discussing. You don’t need to use a magic word or special phrase. - The most important thing is that everyone is clear about what they and their partner want. - Anyone whose judgement is impaired by drugs or alcohol can not give consent.

Non-Refusal, or Consent with Conditions ✋

- Sometimes when initiating sexual activity an individual might seem to ‘imply consent’ through not actively refusing. Or they may consent with conditions like ‘no penetration’, ‘only if we use the contraception I choose’, or ‘only if you show me proof of no STI’s’.

- Relying on ‘implicit consent’ can be vague and lead to misunderstandings. If a partner is not consenting explicitly it’s better not to ‘guess’ or just ‘carry on’ but to stop and confirm what they really want through open communication.

- There are many complicated reasons why someone might be scared to express refusal, and so any ‘implicit consent’ should be considered carefully within the context. In the case of conditional consent, if the agreement is not fulfilled or falsely represented, the consent is no longer valid.

Expressed Refusal 👎

- If an individual does not want the sexual contact they can refuse

- Regardless of whether they are a lover, spouse, soulmate, no one can force anyone.

- Consent must be given every time you engage in sexual activity, and can be withdrawn at any time. - Refusal doesn’t have to be screaming, crying, or fighting to be valid.

🔎 Real Life : South Korean Example

Under Korea's current law, the "crime of rape and harassment" should be proven to have been through "violence and intimidation." Even if sexual violence took place under physical oppression against the woman's will, it may not be recognized as sexual violence if the woman did not desperately resist. When judging guilt during the actual trial, whether or not the victim 'consented’ is not sufficiently considered.

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Putting extra meat on a customers plate at a restaurant could be considered ‘implicit consent to sex’. Precedence from a court case where the defendant was found not guilty regardless of sexual conduct against the victims will, the judge remarked that "the defendant did not assault or threaten the other person to the extent that it was remarkably difficult to rebel." In addition, it was judged that the Defendant may have misunderstood that "the woman consented to sex", and one of the grounds presented at this time was that the woman put pork meat on the Defendant's plate at the pork stew restaurant." - 2019 Uijeongbu District Court

🔎 Real Life : Overseas Examples

International courts, such as the International Criminal Court and the European Court of Human Rights, all judge rape based on the concept of 'consent'. The International Criminal Court places 'absence of consent' as the main focus of determining whether rape is established. The European Court of Human Rights, under the European Convention on Human Rights, judges that all sexual acts committed without the consent of the victim is subject to prosecution and punishment.

Many countries, including the United Kingdom, Iceland, Australia, the United States, Canada, Sweden, Ireland, and Germany, are judging rape crimes based on the consent of the victims. The United Nations has also repeatedly recommended that each country define rape based on consent.

✔️ YES MEANS YES

There is a movement of change calling for all sexual activities made without "affirmative consent" to be considered legally non-consensual. In 1990, Antioch College in the U.S. first introduced the "Yes Means Yes" principle as a criterion for judging sexual violence cases on campus.

It is not the fact that the other party did not say "no”, but whether they clearly said ‘yes’ that creates the standard for sexual conduct.

In 2016, the Canadian court also proposed "affirmative consent" as the standard for sexual assault crimes. In the United States, some states in Australia, Sweden and other countries 'affirmative consent' is stipulated in the law. In Sweden, if the perpetrator does not intend rape but does not sufficiently get consent they can be charged with ‘negligent rape’.

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Sexual touching is only lawful if the person affirmatively communicated their consent, whether through words or conduct. Silence or passivity does not equal consent. - Criminal Code of Canada (Section 273.1)

Summary

Sexual activity without consent from all parties is assault

Consent must be conveyed actively through words or actions

In order to have consent there should be no mitigating factors like alcohol, drugs or hierarchical relationships

The simplest and most affective way to ensure consent is to verbally ask, and to respond in kind