New Year’s Eve is a night when many of us are going out to parties, drinking and partaking in various intoxicants. Traditionally, couples (or friends or even strangers) will kiss at midnight and some of us may end up going a bit farther than that. My post today is going to address the issue of consent, as it relates to sexual activity and sexual assault, so that New Year’s Eve and all other nights can be enjoyed by all and without involving the criminal justice system.
Lack of consent is what separates legal sexual activity from sexual assault. In other words, consent is mandatory if you want to have sex with someone, kiss them, or do any other activity that would look sexual to an objective observer. If you find yourself wondering whether what you want to do is “sexual” or not, it’s best to err on the side of caution and ask the other person first. It might feel awkward, but that awkward feeling is much easier to deal with than the consequences of committing a sexual assault.
WHAT DOES CONSENT LOOK LIKE?
How someone expresses consent is likely to vary somewhat from person to person. However, there are a few things that need to happen for you to be able to be sure that the other person is actually consenting to the activity. I’ll describe the other person as a “sexual partner” even though you might not be having sex, just for simplicity’s sake.
Consent is a dynamic concern based on each person’s particular understanding, which may be confusing and even unreasonable. Without any doubt, my list of considerations will fail to account for the fluid nature of human interactions. What may look like consent in one circumstance may not be considered consent in another.
- Your sexual partner needs to express that they are consenting through either words or conduct. No one else can do this for them. Although you can consent through conduct, not everyone is skilled at reading body language and it is better to ask when you are not sure.
- Your sexual partner needs to be capable of consenting. This means that they need to be at least 16 years old and fully conscious. It also means that they need to be sober enough to consent to sexual activity. There is no legal definition of how intoxicated someone needs to be before they are incapable of consenting and consent is measured subjectively, based on individual feelings and experiences. If you cannot tell whether someone is too drunk or high to consent, then you should not do anything sexual with that person.
- Your sexual partner needs to be making the decision to take part in sexual activity free from any coercion and if you are in a position of trust or authority over them, free from any pressure that may be created due to that position. If there is any doubt as to whether your potential sexual partner is only appearing to consent due to a power imbalance that exists between you, you should not engage in sexual activity with that person. Any sexual activity that happens when there is a power imbalance involved requires extensive communication and thoughtfulness. In some cases, it may be illegal regardless of how you both feel or it could result in one or both of you being terminated from your employment. In the workplace, both parties need to be very careful and you may want to consult a lawyer and your union or HR department before becoming sexually involved.
- Consent needs to be ongoing and it is fully revocable. If you start any kind of sexual activity with someone, and they tell you to stop or indicate through their conduct that they do not want to keep going, you need to stop immediately. This means that you need to pay attention to your sexual partner, listen to what they have to say and stop if anything they do or say makes it seem like they are no longer consenting. As with point number one, it is better to ask if you have any doubts.
- Although this should be obvious enough not to need saying, consent cannot be obtained through force, threats or fraud. Your sexual partner needs to be freely consenting, and they need to know what they are really consenting to.
WHY IS CONSENT SO IMPORTANT?
As I wrote above, sexual activity without consent is sexual assault. This is a serious criminal offence that carries with it a risk of serious jail time. Sexual assault also causes serious consequences for victims, including post-traumatic stress disorder, and has costs for society at large. Most of us did not learn about consent during our sexual education classes in elementary school or high school, and it can be difficult to talk about. The best reason to make sure that you keep consent in mind tonight is that it allows everyone to have a good time and stay safe. What could be better than that?