SEXUAL ASSAULT, What is Consent?

Globally, the term “sexual assault” covers behavior from unwanted touching to rape. Each state has its own legal definition and criminal code, and thus definitions of acts that constitute sexual assault vary. These definitions are gender neutral because sexual assault happens to both females and males, although the vast majority of sexual assault victims are females. If you’ve been falsely accused of sexual assault then you should contact a criminal attorney at your earliest possible convenience, as they may be able to help you prove your innocence.

The Canadian Women’s Foundation reports that 96% of Canadians agree sexual activities between partners should be consensual, only 1 in 3 Canadians know what consent means. This must Change! Education is Key.

What is consent?

Sexual activity requires consent, which is defined as voluntary, positive agreement between the participants to engage in specific sexual activity.

Communicating consent:

• Consent to sexual activity can be communicated in a variety of ways, but one should presume that consent has not been given in the absence of clear, positive agreement.
• While verbal consent is not an absolute requirement for consensual sexual activity, verbal communication prior to engaging in sex helps to clarify consent. Communicating verbally before engaging in sexual activity is imperative. However potentially awkward it may seem, talking about your own and your partner’s sexual desires, needs, and limitations provide a basis for a positive experience.
• Consent must be clear and unambiguous for each participant at every stage of a sexual encounter. The absence of “no” should not be understood to mean there is consent.
• A prior relationship does not indicate consent to future activity.

Alcohol and drugs:

• A person who is asleep or mentally or physically incapacitated, either through the effect of drugs or alcohol or for any other reason, is not capable of giving valid consent.
• The use of alcohol or drugs may seriously interfere with the participants’ judgment about whether consent has been sought and given.

Consent must be clearly given every time people engage in sexual contact.

The Telegraph (Gordon Rayner, and Bill Gardner) states: “Men accused of date rape will need to convince police that a woman consented to sex as part of a major change in the way sex offences are investigated.

The Director of Public Prosecutions said it was time for the legal system to move beyond the concept of “no means no” to recognise situations where women may have been unable to give consent.

Alison Saunders said rape victims should no longer be “blamed” by society if they are too drunk to consent to sex, or if they simply freeze and say nothing because they are terrified of their attacker.

Instead, police and prosecutors must now put a greater onus on rape suspects to demonstrate how the complainant had consented “with full capacity and freedom to do so”.

Campaigners described the move as “a huge step forward” in ensuring fewer rapists escape justice.”

A woman has the legal right to change her mind about having sex at any point of sexual contact. If her partner does not stop at the time she changes her mind, this is sexual assault.

In 1992 a new law was passed that defines “consent” as voluntary agreement to engage in sexual activity with someone. It is popularly known as the “NO MEANS NO” law. Importantly, the law recognizes that there are certain situations that make giving true voluntary agreement questionable. Such situations include if the person wanting sex with you is in a position of trust or in a position of power or authority over you. For example, teachers or bosses have this sort of position, since they have a say over what grade you get, or if you get to keep your job or will be promoted. The law says that you are the only person who can give permission for yourself.

Your boyfriend, father, husband, employer etc. cannot give permission on your behalf. The law says you have the right to stop the activity at any time and just because you agreed to one activity, (i.e. kissing) does not mean you agree to the next thing (i.e. taking your clothes off) . The law also says that you can indicate your non-agreement by what you do (your conduct). This means that a woman doesn’t have to say “NO” in order to have communicated non-consent.

The following is the Canadian Criminal Code on consent.

Department of Justice – Definition of Consent

Myths & Truths about Rape

A myth is a false idea that many people believe to be true.

In many societies all over the world, people have believed and still believe in myths about what rape is and what causes it. In South Africa, the legal definition of rape has been changed; this means that our law courts now recognize what rape truly is, instead of upholding rape myths (false ideas). Sadly though, many men and women in this country still hold onto harmful myths about rape.

Myths take away the dignity and humanity of the survivor, causing her more trauma and pain and lowering her chances of recovery. Myths also prevent many rapists from being prosecuted. It is vital that all of us in society reject these myths, so that survivors may fully recover and more rapists be convicted.

Note: Many of these myths and facts refer to rape between a man and a woman and the ideas that people have about this. It is important to realize that rape can happen between same sex partners as well and that thinking that rape can only happen between a man and a woman is also a myth.

In certain rare instances women have been known to rape men but at Rape Crisis we have found this to be the exception rather than the rule and so we base our comments on rape between a man and a woman realizing that each rape is unique even as we generalize about it.

MYTH: A woman who gets drunk is inviting rape.

The truth is that both men and women sometimes get drunk – it is not a crime to drink, it is a crime to rape.

TRUTH: A person that is too drunk might be incapable of consenting to sex; sex without consent is rape.

MYTH: It’s not rape if a woman wears revealing clothing, because then she wants sex.

Sex without consent is always rape, no matter what the circumstances.

Just because a woman wears a short skirt or a revealing top does not always mean that she is sending out a signal that she is available for sex. A woman always has the right to choose if, when and with whom she has sex.

TRUTH: When a woman wears revealing clothes she is not actively consenting to sex – she must still be able to deny her consent to sex if she chooses to.

There is no legal consent when one or both parties are intoxicated – bottom line.

“Alcohol is often involved in cases of rape, and is one of the most commonly cited factors in attempts to explain or excuse it.

However, although alcohol consumption is something in which anyone over 18 is free to indulge, in the public discourse around rape and sexual assault, its significance is something that plays out very differently for women than it does for men.

Alcohol is seen both as something that greatly increases the vulnerability of women not only to rape, but also, perversely, to accusations of blame for that rape. Although it is men who perpetrate rape, it is women who are urged to modify their behaviour by abstaining or drinking less, and thus accommodate the danger posed by predatory men.

Alcohol is used by men who rape both as a means of incapacitating the women they assault, and also as an excuse for their own behaviour.

It is deeply ingrained in our culture that this is the natural order of things – that women are prey and therefore obliged to behave in a way that can prevent or avoid harassment and assault.

The result of this is that behaviour which genuinely is problematic (to the extent that it is criminal) – the willingness of so many men to target and exploit women who are drunk, or use alcohol as an excuse for assaulting them – is never challenged or even addressed.

And until it is, and we stop blaming women for rape because they were drinking, women in Scotland will continue to pay for the double standard we apply where alcohol consumption is concerned.” – the women globally, and most men agree.