Consent is a subject that’s been firmly in the public sphere in recent months thanks to movements like #metoo. It’s also this year’s theme for FPA’s Sexual Health Week. Talking about consent is excellent, but what does it actually mean? FPA communications volunteer and consent educator, Heather has written this guide
Section 74 of the 2003 sexual offences act defines consent as 'if he agrees by choice, and has the freedom and capacity to make that choice'. So, how does this play out in everyday situations?
Let’s break down the very technical definition into its three parts – capacity, freedom and agreement – to see how these ideas impact on relationships.
Under UK law, there are certain groups of people who are deemed unable to consent. This means that no matter what those people say, any sexual act with them is automatically non-consensual. This includes children under 13 and people with severe mental health problems or learning disabilities (although there is a spectrum here and we shouldn’t assume anyone with a learning disability can’t have a healthy sex life).
Capacity also takes into account certain sexual situations. For example, despite being over the legal age of consent, if you are under 18, you cannot legally consent to sex with someone in a position of trust, like a teacher or a care worker. Capacity is there to stop people being taken advantage of.
Kira is 17 and thinks her A level maths teacher is really fit. He’s only recently qualified so he’s not much older than her. She does try to flirt with him in lessons. One day after class, she stays back and tells him she really fancies him. He kisses her. But makes her promise not to tell anyone if she wants anything else to happen.
This isn’t consensual because even if Kira wants something to happen and makes advances, it’s her teacher’s responsibility, as someone in a position of trust to control his behaviour. As a teacher he will definitely know this, whereas Kira might not, which is probably why he asked her to keep it a secret.
Drinking and taking drugs reduces your capacity to consent. It should be obvious to everyone (although sadly it often isn’t) that someone who’s unconscious doesn’t have the capacity to do anything, let alone consent to sex. It’s not your responsibility to prove you’re too drunk to have sex, rather it is part of seeking consent to make sure the other person is present enough to know what they’re saying. This can be complicated, especially if you don’t know each other very well. One solution, especially if you have met on a night out and are looking for a hook up is to head for a kebab before going home. In the bright light and relative quiet of a take away, it’s much easier to see how awake and present your prospective partner is. Food will help you sober up a bit, give you the chance to talk and make sure both of you want to move forward with your night. And, if you decide it’s better to head your separate ways, least you’ve still had a kebab!
The importance of freedom in the definition of consent is to make sure no one is being coerced into sex. Saying “yes” to keep yourself safe isn’t consent and shouldn’t be taken as such. In the extreme cases, this is acknowledging that people in abusive relationships who are afraid of repercussions (be they physical, psychological or financial) are not consenting to sex.
Coercion can be obvious sometimes – abusive partners threatening violence if they’re refused sex – but it can also be subtle. If you are on a zero hours contract and your boss who decides how many shifts you get, if any, hits on you, is that coercive? Your boss might not think so, but it can be intimidating to say no, in case they cut your hours.
In relationships, coercion can happen in lots of little ways. Making someone feel guilty about not wanting to have sex with you is coercion. Telling someone they’d have sex with you “if they love you” is never ok as it makes it difficult to say no.
All relationships have power imbalances, this doesn’t make all sex coercive. But healthy relationships acknowledge these, whether it’s a difference in financial stability, physical size, disabilities, sexual experience or anything else. Letting your partner know when these imbalances affect your relationship is very important.
Alice has recently lost her job and is relying on her husband for financial support until she gets a new one. Her aunt was abused by her uncle and couldn’t leave because he controlled all of the money in that household. Alice has become jumpy and uncomfortable about sex, especially when she has just asked for money. She talks to her husband who listens and together they talk about how to make Alice feel more confident and to keep their relationship as normal as possible during this tricky period. He asks if he can kiss her and if she’d like to share a bath because that’s calmed her down before. Alice says yes to both and feels much happier.
Alice’s husband not only listens to her concerns but helps her work on a plan together where they both look out for signs she is not comfortable and communicate them. He then asks her explicitly for consent and suggest an intimate activity that she enjoys, showing that he is not only listening to her now, but has listened before. This all helps Alice feel supported and loved.
The most important thing when you ask for consent is to make sure you get a confident yes. Consent is not someone just not saying no. Everyone involved should be happy about what is happening – sex where everyone is happy and enthusiastic is always going to be the best sex.
Consent is also ongoing and changeable. You can withdraw your consent at any point for any reason. Sure, this can be disappointing for your partner but they shouldn’t make you feel bad about it.
Consent isn’t transferable. Agreeing to one thing doesn’t mean agreeing to other things, and it doesn’t mean that agreement last forever. It would be weird if you agreed to let someone use your phone to make a call once then they assumed they could take your phone without asking whenever they wanted after that. Or it meant they could use your laptop because it’s a bit like a phone. This seems really basic, but it can get lost during sex.
Rachel and Marike have been going out for over a year. Rachel decides to spice things up by bringing a vibrator into bed one night. Marike is a little bit unsure, but Rachel says it’s no different to having fingers on your clitoris, if anything it’s just better. Marike hesitantly says ok, but she doesn’t want to be penetrated by it. Rachel says ok and begins to use it on Marike. Marike starts to relax and enjoy it. As she reaches orgasm Rachel pushes the toy into Marike’s vagina. Marike doesn’t say anything initially but after a few seconds says that it hurts. Rachel says you’ll get used to it and continues.
This is not ok for several reasons. Rachel seems happy to ignore both Marike’s non-verbal cues (looking and sounding hesitant) and her verbal cues (her boundaries and then her saying it hurts). Trying new things can be excellent, but only if everyone is on board.
Consent is not a difficult concept and when you put the behaviours that lead to non-consensual sex into any other context they seem, frankly, absurd! Sex doesn't need to be a mysterious thing and conversations can’t be skipped over, they are the most important part of a happy and healthy sex life. For more resources on consent head over to FPA's Sexual Health Week campaign page - Consent: Yes Yes Yes