Rules of Consent: Consent is an important topic to understand, inside and outside of court. But if you have found yourself in a court action and need to know the definitions, rules, consequences, and principles surrounding consent, you can find out more from this article.
Consent is a fundamental aspect of court rulings surrounding issues such as rape, sexual assault, and sexual abuse. All of these terms have different legal definitions under different jurisdictions. Today, we will be looking at a broad understanding of consent and the rules surrounding it.
Again, the legal definitions of these different terms vary according to what law you are under. There is no singular legal definition of consent. Make sure you check to see what the specific legal definition is under your province or state.
A general definition of consent is permission for something to happen, or an agreement to do something. Consent occurs when one person voluntarily and intentionally agrees to the proposals or suggestions of another person.
According to the Canadian government, under subsection 273.1(1) of the Criminal Code, consent is defined as “the voluntary agreement of the complainant to engage in the sexual activity in question”. You can find greater clarification in this regard here.
If you are going to understand the rules of consent, then you must understand the notion of the word itself. When considering these rules, the capacity to consent should always come first. If the complainant does not have the genuine capacity to consent, consent can not be given.
Keep in mind that under Canadian law, sexual assault is defined as including all unwanted sexual activity. Any sexual activity is technically illegal if both parties do not voluntarily engage in it. However, even if both parties seem to be consenting, consent still cannot occur in some situations.
Consent cannot occur when the person purported to be giving it is:
- Under the influence of drugs or alcohol, or otherwise intoxicated
- Asleep or unconscious
- Under pressure, intimidation, or threat
- Mentally incapacitated or disabled
- Engaging in an activity that will cause bodily harm
- Under duress or physical force
- Purposely mislead about the potential harm that may result from the sexual activity
There are other things to consider even if all of the above scenarios are not an issue. For example, in Canada, there is no consent under the law when:
- The complainant is incapable of consenting to the activity.
- An individual other than the complainant has expressed agreement on behalf of the complainant.
- The complainant expresses a lack of agreement to continue the sexual activity that was previously consented to.
- Consent is induced by abuse of a position of trust, power, or authority.
- The complainant expresses a lack of agreement to engage at all in sexual activity.
The responsibility to determine consent is always that of the person who is initiating or pursuing the sexual activity in question. The initiator must ensure that their partner or partners are not only legally able to provide consent but are completely voluntarily engaged in the activity. If the recipient of the sexual advances is hesitant, needs to be convinced or coerced, unsure, or in any way reluctant to engage in the activity, they have not provided consent. Silence or a lack of protest does not constitute consent.
Around the world, the age of consent varies from 12 to 21 years old. Most countries define the age of consent as somewhere between 14 and 16. The age of consent can also depend on various factors. For example, in Canada, the age of consent is 16 but changes to 18 when the sexual activity involves a relationship of trust or authority, prostitution, or pornography. There are also exceptions for individuals as young as 14 when the relationship involves someone who is less than five years older than them.
In countries such as Iran, Yemen, and Afghanistan, it is completely illegal to have sex outside of marriage, however, there is no age restriction on marital sex. In other countries such as Vietnam, Ireland, and Turkey, the age of consent is 17-18 years old. In Bahrain, the age of consent is 21, the highest in the world.
At the end of the day, it is important to think logically when considering the rules of consent. While no means no, so does anything that isn’t a resounding, affirmative, yes. Unless you are receiving enthusiastic engagement in sexual activity from someone who is legally able to consent, it is best not to proceed.