Vice Nation – Sex I: Consent

(Title Image: Gair Rhydd)

Although not necessarily a vice, sex has always been closely linked with politics as a moral yardstick, whether that’s “fornication” in the pre-enlightenment ages, the spread of AIDS in the 1970s and 1980s right through more modern issues like same-sex marriage, teen pregnancy and gender identity.

When setting out what sort of Wales we want post-independence you can’t ignore or gloss over darker topics. Over the next week I’ll be undertaking a six part exploration of sexual politics (and, indeed, how sex fits with Welsh independence); this will include stuff like pornography, prostitution, sex crimes and sex education.

I’ve decided it’s best to start with a look at one of the most important cornerstones of sex – consent.

What does (sexual) consent actually mean?

There’s a statutory definition of sexual consent from the Crown Prosecution Service in EnglandandWales. Basically it boils down to someone having the capacity to make the choice to engage in sexual activities and make that choice freely and equally.

So sexual consent has to be both active and informed. Active consent is self-explanatory – all participants have to willingly and clearly agree to sex. Informed consent means you fully understand what’s involved and what it means if you give consent.

There are a number of circumstances where active and informed consent cannot be given:

Age – It’s true there can be very mature 13 year olds and very immature 32 year olds who like toilet humour and blogging. Nonetheless there are physical, emotional and psychological development stages that need to be reached before someone can, with certainty, decide to have sex or not. That’s why the age of consent isn’t (here anyway) the same age as reaching puberty. Children should be allowed to be children, and sexual misconduct that involves children counts amongst the few deviant behaviours that universally disgusts society – though that hasn’t always been the case; pederasty was once commonplace in ancient societies and was once endemic in British private schools.

Coercion– Where consent is given under duress. This could be the threat of violence, psychological abuse (like being tricked, emotionally blackmailed or pitied into having sex within a relationship), sexual slavery or “pimping” of prostitutes (Part IV).

Incapacity– If someone is drunk, drugged or unconscious they can’t give consent. A problem arises when someone clearly gives consent when they’re drunk, but the following day can’t remember whether they did or not or regret the encounter. This leaves legal grey areas which I’ll return to later.

Lacking mental capacity – This could be due to serious learning disabilities, or neurological disorders where someone is unable to understand what consent is or what they would be consenting to. Sadly, sexual abuse in nursing homes and care homes does exist. People with special educational needs are taught sex education in the same way as pupils in mainstream schools (Part VI), but there’s always a risk they may be taken advantage of if they haven’t been taught properly.

There are other, more grim, examples that needn’t be discussed in any great detail but would also fall under the above – voyeurism, necrophilia and bestiality for example.

Why is this such a legal minefield?

Any penetrative sex without either informed or active consent being given by all participants beforehand is rape if you’re a man and assault by penetration if you’re a woman (more in Part II). It remains one of the most serious crimes you can commit or be accused of.

The problem comes down to how courts and juries prove someone gave their consent. No matter how much many would like it to be different, they can’t just take someone’s word for it as it’s effectively presuming that rape and sexual assault defendants are guilty until proven innocent. The evidence that a rape or sexual assault has been committed needs to be watertight and, due to the emotional distress caused, even giving evidence at trial can be difficult.

In most areas of life you either give consent in writing – you sign a contract – or you have a verbal agreement, like giving verbal consent to a doctor to examine you.

With sex it’s a….little bit different….as there’s a physical reaction separate from the mental one. You can be sexually aroused but still not want sex at that time. I think that’s something many men perhaps won’t understand from a woman’s point of view even though we experience it ourselves; we’ve all had random boners and all healthy men get “morning wood” (nocturnal penile tumescence if you want to get technical), but that doesn’t mean we want to act on it.

Asking someone to sign a legal waiver would be a bit of a mood-killer (but it does happen), while verbal consent might not always be informed – one or both (….or more) of the participants might be drunk, drugged, coerced into agreeing, too young to give legal consent in the first place, or despite being aroused and engaging in foreplay etc. doesn’t want sex or has changed their mind.

Proving consent is ultimately one person’s word against another’s and incredibly difficult to determine for certain unless there were witnesses or other indicators consent wasn’t given (like signs of a physical struggle or other forensic evidence). It’s up to juries to decide who’s telling the truth and it’s not easy.

This results in unhelpful discussion about “different types of rape” or victim blaming (i.e. “You were drunk, it’s your fault”). But rape isn’t just young women being dragged off into the bushes at knife point; it can be committed within a relationship (even accidentally), it can happen when one of the participants changes their mind during sex, a minority of rapes are committed against men and boys too.

One particular problem is that once consent is given it can’t be withdrawn after the act.Nobody has been raped or sexually assaulted if they’ve given proper consent then regretted having sex afterwards, and this is probably why a minority of rape cases are thrown out of court.

It may be popular (sometimes correct) to bash so-called “social justice warriors” for pursing politically-correct direct action on university campuses; but one thing that’s perhaps not so silly are mandatory “consent classes” – particularly if the standard of sex education new students received at school haven’t been up to scratch (Part VI).

It should be as simple as “No means no”, but there are shades of grey that the legal system still struggles to deal with.

Part II will address that very issue – how to deal with sexual offences.