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You’ve been on a few dates with your new beau. Although you have kissed, you delayed having sex because you don’t want him to think that you’re an “easy” woman. But after a few weeks, your hormones are raging and you impulsively sleep with him. You soon find out that he is married with children and has lied about his age.
In this scenario, did you actually consent to have sex with this man?
According to Wikipedia, consent “refers to the provision of approval or agreement, particularly and especially after thoughtful consideration”.
Law Professor at Yale University Jed Rubenfeld affirms that when a man withholds pertinent information about himself from a romantic partner in order to have sex with her, he is committing “rape-by-deception”. Furthermore, it is irrelevant whether the woman did or did not experience pleasure during the sexual encounter.
Rubenfeld explains that the obtained consent was no consent at all because the partner never agreed to have sex within that context. Although many will object to the term “rape”, Rubenfeld argues that physical force is not required – only the violation of the person’s sexual autonomy is the key factor. Therefore this man would have committed “second-degree rape” instead of “first-degree rape” which involves the use of violence.
Sexual autonomy is defined as “people have a right to decide for themselves with whom and under what circumstances to have sex”. Court Justices in countries such as Israel, the United States and Canada have recently upheld this view of “rape-by-deception”.
One of the challenges of the “rape-by-deception” scenario is that Rubenfeld depicts women as the only victims of this kind of manipulation. In real life dating situations, both men and women withhold pertinent information about themselves from their lovers. Therefore one would have to determine who told the most damaging lie, and charge that person with “rape-by-deception”.
According to Statistics Canada, there were a total of 21,821 sexual assaults against adults in 2011. 98% of these cases were classified as level 1, which is the least serious of the three levels. Most of these assaults were against women aged 14-24 by family members or close associates. Although these reported cases are declining, they most likely represent a lower percentage of the actual number perpetrated sexual assaults.
The Canadian age of consent to sexual acts was renamed “the age of protection” in 2008 and raised from 14 to 16 for both sexes. Sexual activity is permitted for 14 and 15-year-olds if the sexual partner is less than five years older. There is also an exemption for 12 and 13-year-olds if the sexual partner is no more than 2 years older.
North American universities such as Duke and Yale have put guidelines in place to prevent sexual misconduct from occurring on their campuses. In this context, sexual misconduct is defined as “any physical act of a sexual nature perpetrated against an individual without consent.”
Thus consent has to be informed, an unambiguous verbal “yes” or otherwise, without real or perceived power imbalance and not intentionally or unintentionally forced. Furthermore, the person giving their consent has to be conscious, not intoxicated (i.e., drunk) and has a right to limit consent to a certain kind of sexual activity, body part, and time frame.
Dr. Harry Brod, author, and professor of Philosophy and Humanities at the University of Northern Iowa acknowledges that explicit verbal consent may initially seem awkward between romantic partners. But the positive aspects of this approach are sexual assault prevention, better communication, enhanced intimacy, and hotter/erotic sex.
However, explicit consent in the context of an established romantic relationship is usually ambiguous and more problematic. Norwegian Women’s Studies writer Hedda Hakvåg argues that consent implies that both parties are free from the pressure of social norms and socialization as to what is expected from a man and a woman.
Coercive sexual behaviours are often seen as “playful” and expected from men since North American society portrays them as unable to control that strong sexual drive. Women are in turn depicted as having lower libido and supposed to be flattered of being desired by their male partners.
Some women may say “yes” to sex not because they want sex but in an attempt to please their man and maintain a “good” relationship. Men are also coerced into having sex with their female partners because they might be perceived as less masculine or even gay. Furthermore, women and men sometimes pretend to experience greater pleasure from sex with their partner than they actually do. Therefore, stereotypes about what defines the sexual behaviour of both sexes are often internalized, and there is no need for the partner to pressure them to have unwanted sex.
Clinical Psychologist Nicola Gavey defines unwanted sex as “sex that is unwanted only in the sense that it takes place in the absence of desire”. In this context, although both individuals try to rationalize their good intentions, emotions such as disappointment in oneself, guilt, and discomfort still arise.
Consequently, true consent only happens when individuals of legal age have all the pertinent information about one another, are fully conscious, say an explicit “yes” and sexually desire each other. Sadly, it is rare that all these conditions are met in real life.
Consent is a very sensitive issue. It has criminal, political, social, sexual, and personal implications. Therefore, consent has to be analyzed within a particular time, place, and culture to establish guidelines that can realistically work.
Perhaps the first step in reducing the number of sexual assaults is to challenge our internalized ideas about what constitutes masculinity and femininity in romantic relationships. By having a better understanding of this delicate dynamic, more couples may enjoy consented sex that is desired by both parties.
Literary Truths
Here are other facts about consent/sexual assault:
- Until the early 20th century, almost all sex was illegal in the United States. Under American sex law, only heterosexual, copulative (no use of contraceptives), marital intercourse was legal.
- In North America, rape used to be viewed as a crime that shamed and dishonoured a woman. A fallen woman could not be raped as she had already voluntarily given up her “virtue”.
- 25% of Canadian girls and about 13% of Canadian boys have been sexually abused by their eighteenth birthday.
- In Canada, 80% of sexual assaults occur in the victim’s home.
- Every 17 minutes, a woman is sexually assaulted by forced intercourse in Canada.
Truth in Motion
References
Dauda, Carol L. “Sex, gender, and generation: age of consent and moral regulation in Canada.” Politics & Policy 38.6 (2010): 1159.
Hakvag, Hedda. “Does yes mean yes? Exploring sexual coercion in normative heterosexuality.” Canadian Woman Studies 28.1 (2009): 121.
Lantz, Sarah. “Sex, power and consent: Youth culture and the unwritten rules.” Youth Studies Australia Mar. 2011: 6.
Mueller, Tiffany M., and Zoe D. Peterson. “Affirmative Consent and Safer, Hotter Sex.” The Journal of Sex Research Mar.-June 2012: 303.
Police-reported crime statistics in Canada, 2011
Rubenfeld, Jed. “The riddle of rape-by-deception and the myth of sexual autonomy.” Yale Law Journal Apr. 2013: 1372.