Under Singapore’s penal code (and many penal legislation throughout the world), rape is committed when vaginal penetration occurs without consent. Consent is an agreement between participants to engage in sexual activity. With such agreement, all sexual activity between the parties would be consensual and there would be no room for either party to cry foul – at least in theory.
In reality, the notion and practice of consent in sexual activity is particularly amorphous and lends itself to multiple interpretations.
How do we give consent? It is apparent that communication is key to establishing agreement between the parties. However, in the heat of intimacy, what actions and words communicate consent? Those who are particularly cautious may want to secure a written agreement. If words are exchanged, it is difficult to ascertain the boundaries of what is being consented to:a m I just agreeing to kissing or something more?
Can silence amount to consent? Sexual assault trainings constantly emphasise that silence does not amount to consent. Consent must be affirmative: there must be a positive yes to sexual activity. It should not be presumed that mere silence and acquiescing to sexual activity constitutes consent. However, it can also prove to be very awkward to constantly verbalise one’s consent in the midst of intimate activities.
Yet even if consent was verbalised, it also needs to be constantly renewed for each sexual act and there must be a possibility for consent to be withdrawn at every stage. On the first issue, having sex with someone in the past does not indicate consent with having sex with someone in the future.
Besides, if the sexual activity becomes uncomfortable at any point of time, there must be freedom for the parties to express this discomfort and withdraw the consent from proceeding further. Often, it can prove to be very difficult to remove oneself from a situation that has escalated rapidly and non-verbally in the dynamics of intimacy.
Difficulty of Ascertaining Consent in Assault Cases
In many criminal cases involving rape or sexual assault, it can be difficult to establish the conviction especially if the perpetrator claims that it was not a crime, but a consensual act. Consensual sex and sexual activity, after all, is not a crime.
Most sex offence cases involve people who know each other. The parties may either have a prior relationship, were on a date, or were together at a party. This means that there is reason to believe that the parties were engaging in consexual sex. In these cases, the criminal case is dependent on the tussle between the victim’s word and the defendant’s.
The involvement of alcohol in these sex offences cases further complicates matters. Does the drinking of alcohol render someone so intoxicated that they have are rendered incapable of consenting and agreeing to sexual activity or not?
While the empirical evidence shows that there are many cases of incapacity where the victim is extremely intoxicated at the time of a sexual assault, these cases often do not make it to the courtroom since officers do not believe that the victim was too drunk to determine if she wanted to have sex.
‘Victim Blaming’ in the Consent Game
Unfortunately, public attitudes about consent has also led to the blaming of sexual assault survivors. Typically, victims of sexual assaults are blamed for bearing a partial responsibility, i.e., that they have made particular choices or actions that have contributed to their assault. For instance, a victim may be blamed for entering the same room with the perpetrator, for drinking too much or for attending a particular party.
It almost seems like we are placing the burden of preventing rape on to the potential victims. In the market, we have anti-rape gadgets such as chastity belts or draws that change colour when exposed to date rape drugs.
In most other cases of interpersonal criminal offences like physical assault, our efforts of rehabilitation and prevention focuses on the offender rather than the victim. We may help the offender retrain the violent tendencies manifested or that we may train bartenders to cut off the alcohol supply when someone becomes lucid. However, in the case of sexual assaults, there is almost an expectation that potential victims look out for themselves and take adequate preventive measures against being raped.
Can we redefine the notion of consent in sexual assault cases such that it better protects all parties to the sexual activity? Can we look forward to a world where consent is not used as a means of justifying and condoning unwanted sexual advances.
YouTube: Debate on whether affirmative consent law (i.e., that consensual sex requires a clear “yes” from both parties) will curb sexual assault.
Questions for further personal evaluation:
- Why do you think it is important for parties to consent to sexual activity? What is the offence committed or harm when consent is absent from sexual activity?
- How do you think schools can teach their students about what true consent means? Should they be the ones teaching it or other parties?
- ‘amorphous’: without a clearly defined shape or form
- ‘acquiesce’: accept something reluctantly but without protest
Here are more related articles for further reading:
- The Guardian: Campaigners call for consent to require positive affirmation
“Sex simply isn’t static in the way prior agreement would require it to be – each encounter is an ongoing, evolving exchange. Things can change course quickly in the heat of the moment.
For this very reason, campaigners tend now to call for positive affirmation – a “Yes, I want to” – rather than assuming that silence equates to consent. Many people will know how difficult and uncomfortable it can be to extricate yourself from a situation that has escalated rapidly and non-verbally – that doesn’t just go for those of us who have experienced assault, but for everyone who has had to negotiate the messy, subtle dynamics of intimacy. Agreeing in advance about who does what to whom does not reflect the reality of sex. That we might consider it more acceptable to thwart the human sexual impulse than to ask men to stop raping women is a pretty sad state of affairs.
The idea that negotiation and contracts would prevent rape suggests a world in which perpetrators are merely confused,, out of touch or not being communicated with effectively. While there are indeed misguided and inexperienced men who need to be taught that it is not OK to wheedle and cajole reluctant women into sex, there are also plenty of wilful, knowing rapists.
Formalising access to a woman’s body takes us back centuries, to a culture obsessed with maintaining a strict economy of purity. Historical “seduction laws” were ostensibly used to protect both a woman’s right to her body and a man’s good name. The point of sexual liberation, when it came, was that people of all genders should be able to meet as equals and have sex because both parties desire it. That rape still exists is not a reason to abandon this ideal, or the sexual autonomy of women.”
- The Conversation: How community attitudes to sexual violence affect victim blaming
“Too often when people talk about culture and sexual violence, they think of problems “out there” in the world. It is comforting, perhaps, to criticise other nations for their attitudes towards women and to tell ourselves that in Australia women are treated equally and with respect.
But rape culture and its impacts are a global problem and the NCAS survey results show that Australia is not immune.
In a culture that minimises, trivialises or excuses sexual violence – and shifts responsibility away from perpetrators and onto victims – individuals, organisations and communities are less likely to respond. When attitudes condoning sexual violence are common, some men are more likely to feel it is okay to behave disrespectfully or even violently. We as a community are less likely to take action to intervene, or to support a victim.
In a culture that fails to take rape seriously, victims feel afraid to seek help. They are unsure of what kind of response they are going to receive from friends, family and institutions like police and courts.
Yet sexual violence and the attitudes that condone it are not character faults in individuals; they are learned. If we want to change attitudes we need to change our culture and the influences that shape it. This involves the way we raise boys and girls, the way men’s and women’s relationships are shown in media and popular culture, and the position our leaders take on this issue.”