Contentious Consent

by Janet Kimani

What is consent and why is it so contentious? Is it really that confusing?

There are many dimensions to consent and admittedly some blurry areas. In any case, there a few things I would like to consider as the basic rules of consent. Things that stipulate clearly what consent is versus what it is not.

At the top of my list is that consent is freely and readily given. Sexual consent should not be as a result of coercion or manipulation. Consent that is drawn from guilt-tripping or endless efforts of begging or convincing is not true consent. Furthermore, silence does not equal consent, and just because someone does not explicitly say “no” does not mean that they have consented. Consent should freely come from an individual who verbally expresses that they want to engage in sexual activity. In fact, I'll even go a step further to say that consent should be enthusiastic, not just a, “sure, if you insist” but more of a “Hell yeah!”

Drawing from this, it therefore goes without saying that consent can never be assumed or implied. Unless the person explicitly says yes, consent cannot be assumed from the dressing or the conduct of a person. Just because someone engages in flirtatious conversation, does not mean that they have agreed to having any kind of sexual relations. Even if they are dressed in what you deem to be “provocative,” it is by no means an invitation to assume any kind of willingness to do anything.  Moreover, being in a relationship with someone does not inherently mean that they have signed up for unlimited consent . Even in relationships, one has to ensure that the other person is fully willing to engage in sexual activity instead of assuming that this is implied by the nature of the relationship. Both partners have to agree, on each and every occasion; if not, then it ceases to be consensual. In short, consent is something that is explicitly given before pursuing any kind of sexual activity with someone.

Another important point to consider is that consent is specific, i.e. consent is subject to caveats. If someone agrees to engage in sexual activity under certain conditions, those conditions must be followed in order for it to remain consensual. For instance, if someone agrees to sex but only with a condom, while the other party proceeds to ignore the condition and not use a condom, the sexual activity thus ceases to be consensual. The caveats under which consent is given must be followed to the letter if consent is to be maintained.

It is also important to note that even after consent is given, it can be withdrawn at any moment during the encounter. Someone might say yes and then moments later change their mind. Just as they gave you their consent, they have in the same way taken it back. It is that simple.

Something that is not so simple, however, is the fact that when it comes to consent, sometimes a “yes” is not enough. Consent is only limited to people with the actual capacity to consent. This excludes minors, inebriated persons, or those whose capacity to make a rational decision is hindered by drugs, illness or any such factor. Consent cannot exist if the giver is not even fully capable of giving consent.

Although the above does not fully encompass what consent entails, I believe that if we followed these basic rules and made an effort to educate ourselves on what consent really means, we would begin to take the first steps towards demystifying the contention surrounding consent.