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Sexual Consent

Consent is easy, as easy as 1-2-3.  When someone robs a bank, you don’t initiate a debate about whether or not the bank was robbed, or if the bank was wearing too short of a skirt, or if the bank had been drinking that night. The bank was robbed, the money’s gone, end of story. So why do we ask victims of sexual assault these questions? No one asks if the bank really wanted it or not. Why do we draw such a thin line between sex and rape, when our line between making a withdrawal and robbing a bank is so thick? You have to have the money in your bank account before you can make a withdrawal. You have to have consent before you initiate sexual contact.

Now, if you are like the millions of people across the U.S. whose sexual education was not consent based or maybe didn’t even mention consent at all, you’re probably asking: What is consent? How do I get it?  Consent is easy.

Consent is the most important part of sex. It’s the gas in the tank of your brand new Porsche, the menu at your favourite restaurant, and the trailer for a new Stephen King movie. You’re not cruising the coast, eating a long anticipated lava cake, or seeing the film adaptation of one of your favourite books without the aforementioned. You’re not having sex without consent.

Let me reiterate that statement: you cannot have sex without consent. Sex without consent isn’t sex, it’s rape. Consent can seem complex and strange to many people, and that’s not without logic. But really, consent is easy.

The media portrays consent as this big ordeal and that some people have taken to such an extreme that they’re wanting sexual partners to sign a consent form for sex. Which, at a very basic level, seems to make sense, but even that isn’t a perfect method of establishing consent.

Consent is easy as 1-2-3.

  1. Establish if your partner is able to consent.

    Is your partner someone who is capable of consent? What does it mean to be incapable of consent? People with certain mental disabilities or who are mentally incapacitated are unable to consent, for example: minors, inebriated, demented or somehow otherwise cognitively impaired. This may seem like a no-brainer, but it has to be something you consider before having sex. Here are the steps to achieving consent:

    1. Is my partner conscious? If your partner is asleep, passed out, or unconscious under any other circumstances, they cannot consent. Is your partner conscious? If yes, congrats! Move on to step two!
    2. Is my partner intoxicated? Alcohol can impede a person’s ability to consent, and even impede someone’s ability to understand consent. Alcohol affects how we communicate, increases aggression, and causes tunnel vision that can cause someone to ignore signals that the other person doesn’t want to have sex. Being too drunk can cause tragic misunderstandings and the ignoring or disregarding of consent which can end in rape. Wondering how to determine if someone is too drunk? Ask! Find out if they can identify who they are with, where they are, how they got there, when it is (What time is it? What’s the date?), what they are doing, and why they are there. Is your partner able to answer these questions? If yes, awesome! Move on to step three!
    3. Is my partner making this decision confidently and willfully? Does my partner have a mental or physical disability that prevents consent? Is my partner of legal age to consent? Does my partner feel coerced, threatened, or intimidated? Any of these are signs that your partner is unable to consent. If they don’t fall into these categories, it’s time to ask the big question!
  1. Ask your partner.

    “Do you consent?”, “Is this okay?”, and “Can I do this?” are three great examples of asking for consent. If asking for consent is something you haven’t practiced in your sex life, it may seem awkward at first. You may not want to interrupt what seems like a perfect moment to ask how your partner feels, but this can make all the difference. Consent doesn’t have to be sexy, but it is required. Consent is easy. If possible, ask ahead of time what your partner would be comfortable with! Being direct is key here! Do not pass go and collect $200 until you get a solid, “yes!”

  2. Maintain consent.

    This is where the consent form idea falls short. Consent isn’t a one-and-done kind of concept. Consent is ongoing and enthusiastic. Check in with your partner periodically to make sure they’re still consenting. Ask them, “How are you feeling?”, “Are you having fun?”, or “Do you want to keep going?”, because consent can be retracted at any time during the encounter. Your partner has no obligation to continue having sexual contact with you, even if they consented initially. Your partner may be comfortable with one thing but not with another, so just ask!

Let’s take a step back and take another look at those questions we didn’t ask the bank. Now that we understand what consent is and what it means, we’re equipped with the knowledge to answer these questions. We’ve established that consent requires an enthusiastic, “Yes!” from all parties involved. A skirt or bottle of tequila can’t give consent, but the person wearing and drinking them can. That’s why we the person is the witness – not their clothing or their drinking. Consent is easy – if you ask.

Taking a moment to ask for consent can be the difference between outcomes such as lifelong trauma and imprisonment versus a positive sexual encounter. It’s not difficult or scary.  If you don’t have enough communication going with your partner to ask these questions, you probably should not be engaging in sexual activity.  If at any point, you’re unsure that your partner is consenting:  stop, ask, and listen.

Sex without consent is assault.  Victims of assault have rights in the criminal and civil legal systems. If you have questions about your civil rights, contact Koller Trial Law.