Sexual Assault:
What does consent mean?
This handout is designed to help you understand what “consent” means in terms of engaging in sexual
relations with a partner. When we talk about sexual assault and consensual sex we often use the word
“consent” freely. For instance, it is important that both partners give consent to a sexual experience. It
seems obvious that without this consent then a sexual assault has occurred. However, the issue of
consent raises many questions and deserves more clarification. What are the components of consent?
What if both parties are drunk and have sex, then what? Consent is a legal term that has many
entanglements and is not particularly straight forward. Hopefully the notes on this handout will help you
understand the concept a little better.
What is consent?
Consent comprises of four parts. If one of these parts is not there then consent has not been given. For
consent to be valid it must be:
1. Informed
This is the “who, what, when, where, why, and how”: if one of these elements is missing then the
consent given was not informed. The people involved in the sexual experience must have rational
knowledge of all these things. Many state laws include information about being “incapacitated”
when talking about a person’s ability to give consent. What this means is that both parties need to
be able to make a rational and reasonable decision. If this is not the case, then consent cannot be
given.
Incapacity often exists because of the presence of drugs and alcohol. If incapacity exists and the
perpetrator knows or should have known about this incapacity then continuing to engage in sexual
relations is sexual assault. It is important to note here, the term “should have known”. This is very
important. If your partner is drunk and he or she seems visibly intoxicated -they cannot walk alone,
maybe they have thrown up, or they are showing other signs associated with a person who is under
the influence of drugs or alcohol, then it would be reasonable for you to recognize that your partner
is incapacitated. In this instance it is probably best to stop what you are doing.
Another key point is that any person can put conditions on consent, he or she can even make it
absolute. If you and your partner agree to have sex only if a condom is used and then the condom is
never worn, a sexual assault has occurred. Basically, the reason for this is that when agreeing to use
a condom, consent has been given for that particular incident and not for any other. So to pursue
the sexual act without following those specific parameters makes the act a sexual assault.
Often times it is possible to argue “well, if both of us are drunk, then have we both sexually
assaulted each other?” - the best answer to this is that 2 wrongs don’t make a right. If one of you is
incapacitated, then to have sex with her or him is invalid, and so if you are both intoxicated, then it
is a doubly invalid act. Another point to think about is that there exists in the US a legal presumption
that if the male partner is able to get and maintain an erection and complete the sexual act, then
that male is not incapacitated. There has been no legal precedent for mutual incapacitation.
To be clear: the law does not say you cannot engage in drunken sex with another person, but it is
important to know that if you do so you are taking a huge risk. If you find yourself in a situation
where your partner seems drunk, the safest thing for all involved is to stop.
2. Freely Given
What this means is that consent must not be forced. There are four types of force under law:
Threats, intimidation, coercion, and physical violence.
Threats: You cannot threaten someone with harm or death to make them have sex with you
Intimidation: You cannot imply a threat or take advantage of something such as your size to menace
another person and intimidate them enough they give in to sex
Coercion: You cannot push past a refusal when one person does not want to continue. What
amount of pressure is unreasonable? Any kind of duress, or cajoling would fall under unreasonable.
Coercion is affected by: Frequency of request, intensity of experience (ie: if you turn on the person
because he or she turns you down), isolation (eg: if you are alone in a room with the person you
want to have sex with), and duration - how long have you been applying the pressure.
Physical violence: You cannot physically abuse someone to force them to have sex with you.
3. Actively Given
Passivity and silence is not consent, you must hear an active “yes” or consensual agreement. Just
because your partner does not outwardly exclaim that she or he does not want sex does not mean
consent is given. Uncertainty and fear can both be reasons why a person may not say something.
But remember, consent to one thing such as oral sex, does not imply consent to intercourse. Be sure
you have consent for all acts before continuing.
4. Mutually Understandable Words
Unless you get the verbal go ahead, it is safer to slow down and clarify with your partner what he or
she is happy doing. Any level of uncertainly is a cue for you to stop, and clarify. Think of a non-verbal
encounter as a yellow traffic light. To run the light without looking both ways could be devastating
as could pursuing sex with someone who has not clearly and verbally stated their agreement. Slow
down and check in these situations. There has to be some level of mutuality for the sexual act.
According to case law from the California Supreme Court, once consent has been taken away, you
must stop in a reasonable time. This doesn’t mean finish the job and then withdraw, it means
shortly after the removal of consent.
Information taken from a presentation on consent by Brett A. Sokolow, J.D at the Safe Society Zone Conference in Orlando,
FL on October 20. 2005
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Office: 303-556-6011 ~ 24/7 Helpline: 303-556-CALL (2255)
www.thepca.org