First, let’s think for a moment about consent. What does it mean to you? From a purely personal point of view, what does it mean when you have given consent to sexual activity? How do you know that someone else has given their consent to you? Take a minute to get this straight in your mind before you read on.
Got it? For today I’ll go with Canadian law. You may need to check out your own laws to be sure.
According to the Criminal Code of Canada
273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
Where no consent obtained
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where (a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. 1992, c. 38, s. 1.
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (a) the accused’s belief arose from the accused’s (i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
There are two key issues for the Canadian Women’s Foundation’s study. The first is that consent is required to engage in sexual activity with another person. The second is that consent is ongoing: if you want to stop, you can withdraw permission at that point. Once you’ve said “yes” you can say “no”.
The Canadian Women’s Foundation survey asked if sexual activity between partners should always be consensual. 96% agreed. (I’m a little surprised and worried about the other 4%). The problem is that 67% of respondents have a limited view of consent. In particular, they did not identify the importance of ongoing consent.
“Over the past year, sexual assault has been pushed into the spotlight, causing greater awareness about the importance of consent” says Anuradha Dugal, Director of Violence Prevention, Canadian Women’s Foundation. “The fact that most Canadians agree sexual activity should be consensual is a positive sign that people understand the critical importance of consent. However, it’s alarming that so many people don’t understand what consent actually looks like. This gap can increase the risk of unwanted sexual activity and assault, and is a clear sign that Canadians desperately need more education on the meaning of consent.”
Also troubling is the notion of consent with social media (e.g. “sexting”). 21% of respondents from ages 18 to 34 said that if a woman sends an explicit photo to a man, this always means that she is inviting him to engage in offline sexual activity. This one is harder to interpret. Are these respondents simply guessing about states of mind? Or do they really think that the sending of a picture is a form of consent to sexual activity. I hope the former, but fear the latter.
According to Ms. Dugal: “As we embrace the digital age, it is important that younger Canadians fully understand the meaning of consent and how it applies in both online and in-person settings. Just because a woman shares a sexually explicit photo, doesn’t mean she’s interested or willing to engage in offline sexual activity.”
Of course the issues go other directions. If a man shares a photo, this cannot be interpreted as consent for physical sex either. Same goes for same-gender sharing. Understandably, the Canadian Women’s Foundation cannot explore all facets of sexuality and consent, and they have chosen to focus on women giving consent (or not) to men. Fair enough, but there is much more to talk about.
And since this is an education blog, let me propose that this talk belongs in the classroom. From an early age. For pretty obvious reasons, it is imperative that young people learn about the nature of consent from a personal as well as a legal point of view. They need to understand how to give their own consent, and how to withhold it. And they need to understand their ethical and legal responsibilities toward others.
That’s all for today. Hopefully my plan of the past few posts is starting to become clear. I began with the question of why sexuality is an issue worthy of school time. Hopefully, after putting forward a couple more ideas, I can make my case.