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- Narrated 'Aisha: I said, "O Allah's Apostle! A virgin feels happy." He said, "Her consent is (expressed by) her silence."
- Similarly wobbly views on sex and adolescents—or rather sex with adolescents—are on profligate historical display elsewhere. It goes in the opposite direction, too. The age of consent in 1920s Chile was 20, but now it's 16. A century ago in Italy, it was 16, too. But today it's 14 there. Overall, studying the numbers in even the most contemporary international age-of-consent table will give you the impression that you're looking at a flurry of seemingly random digits between 12 and 21 (a sizable range): It's 13 in Argentina, 18 in Turkey, 16 in Canada, 12 in Mexico, 20 in Tunisia, 16 in Western Australia, 15 in Sweden, and so on. "More than 800 years after the first recorded age of consent laws," writes the historian Stephen Robertson, "the one constant is the lack of consistency."
Just as when we're assessing religions with conflicting theologies, we can draw only two possible conclusions from Robertson's observation: Either some societies have the one true age of consent and every other has therefore got it wrong, or any given society's age of consent is based on what its citizens have simply chosen to believe about human sexuality and psychological development. And similar to what any objective analysis of competing religious beliefs would force us to conclude, there's no evidence that the former is the case for cultural variations in age of consent laws (that there is "one true age") and every reason for us to conclude the latter is in fact what we're dealing with.
- Jesse Bering, “Age of Consent”, The Stranger, (Sep 11, 2013).
- Rubenfeld is right that most instances in which one of the parties having sex (or both) have failed to give consent to the act, the act is morally wrong. Immoral sex need not be rape (or sexual assault), however. For example, if both sex partners are minors, they are not legally in a position to give consent. If they have sex, they have not given legal content. But it doesn't follow that one person raped or assaulted the other. 'Rape’ is better understood as follows:
A’s sexual encounter with B counts as A's rape of B, just in case (i) A is in a position to give informed consent to have penetrative sex, (ii) A knows or ought to have known that B is not in a position to consent to have penetrative sex or is not verbally or physically agreeing to have penetrative sex, and (iii) A is proceeding to have penetrative sex with B, despite (ii).
- In order to answer the question about the conditions under which sex is morally wrong, we need to know what it means to consent to sex. “Consent” is shorthand for “voluntary informed consent.” Agreeing to have sex does not count as consenting to an entire sexual encounter for three reasons.
1. Consent given prior to a sexual encounter can be withdrawn at any time.
2. Agreeing to have sex can be involuntary. Submission to a sexual encounter is involuntary when it is forced upon a dissenting person by the use of physical force, threat or incapacitating behavior. It is admittedly difficult to specify what exactly counts as threatening or incapacitating behavior. A dissenting person who is too shocked by the other person’s sexual approach to move away or resist is incapacitated, even if she does not feel threatened.
3. The person may not be in a position to consent. Children, for example, are unable to consent to sex. This is not because minors are unable to consent to anything. Certainly, if a parent asks an average six-year old whether she would like the parent to brush her hair, and the six-year old responds that she does, her agreement counts as consent. Six-year olds are normally old enough to understand what it means for someone to brush their hair, and hair brushing does not ordinarily have unforeseen and potentially harmful consequences. So, not only is the child voluntarily entering into the interaction, she also understands the nature and consequences of the action. A six-year old cannot ordinarily consent to sex, however, as she is not in a position to understand what the act entails. Similar remarks apply to at least some mentally challenged individuals.
- Isabel Grant, a law professor at the University of British Columbia, agreed that the way the Supreme Court rules could open a Pandora’s Box for women with any kind of mental disability that compromises their ability to consent to sex.
“And in the context of elderly individuals, if you have someone with advanced dementia, the issue might be what has she said beforehand to her sexual partner, that when she became incapable it was OK to have sex with her.”
In a sense, she argued, that turns women into sexual objects once they become incapable: “You can sort of do whatever you want to me then because I’m not going to be able to change my mind.”
“Are we going to treat that as consent in law?” asked Grant, adding that such a decision could effectively reverse many of the legal gains women have made in the last decade regarding sexual assault.
- “Consent is ‘Do you want to have sex this time with this person?’ And we can’t imply that from the fact that you’ve had sex with him before. … So I think it’s a really dangerous precedent.”
- Isabel Grant; in “Supreme Court Ruling On Sexual Pre-Consent Could Affect Seniors With Dementia”, Toronto City News, (Nov 22, 2010).
- A person would be incapable of giving consent if she is unconscious or is so intoxicated by alcohol or drugs as to be incapable of understanding or perceiving the situation that presents itself. This does not mean, however, that an intoxicated person cannot give consent to sexual activity. Clearly, a drunk can consent.
- Nova Scotia Justice Gregory Lenehan, Canada judge's 'a drunk can consent' ruling stirs debate, BBC, (6 March 2017).
- At first glance, it would seem it should be easy for German authorities to prosecute Meiwes. In fact, however, as the New York Times reported on December 27, though the authorities want to prosecute Meiwes to the fullest extent of the law, they are having trouble finding any serious crimes with which to charge him.
The obstacle to a murder charge is the fact that the evidence incontrovertibly shows that Meiwes's victim wanted to be eaten. Indeed, he had agreed to the arrangement over the Internet, answering an ad placed by Meiwes that specifically sought a person who wanted to be slaughtered and cannibalized.
In the United States, the victim's consent is no defense to murder, and it would be easy to prosecute an American counterpart to Meiwes. But in Germany, the victim's consent renders the crime a "killing on request" -- that is, an instance of illegal euthanasia. Unfortunately, this offense is punishable by a very modest sentence of from six months to five years of incarceration.
- Noah Levitt, “Germany's cannibalism-by-consent case: Possible human-rights claims“, CNN, (January 13, 2004).
- Parliament requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point.
- Consent for the purposes of sexual assault is defined in s. 273.1(1) ( of the Criminal Code) as “the voluntary agreement of the complainant to engage in the sexual activity in question”. This suggests that the consent of the complainant must be specifically directed to each and every sexual act, negating the argument that broad advance consent is what Parliament had in mind. As discussed below, this Court has also interpreted this provision as requiring the complainant to consent to the activity “at the time it occur[s]".
- Chief Justice McLachlin, "R. v. J.A., 2011 SCC 28" excerpts from Reasons for Judgment of Majority; in Judith Wahl, B.A., LL.B., “Sexuality in Long Term Care Homes - the Legal Issues”, Advocacy Centre for the Elderly, (2011), p.16.
- The jurisprudence of this Court also establishes that there is no substitute for the complainant’s actual consent to the sexual activity at the time it occurred. It is not open to the defendant to argue that the complainant’s consent was implied by the circumstances, or by the relationship between the accused and the complainant. There is no defence of implied consent to sexual assault: Ewanchuk, at para. 31.
- Chief Justice McLachlin in "R. v. J.A., 2011 SCC 28"; in Judith Wahl, B.A., LL.B., “Sexuality in Long Term Care Homes - the Legal Issues”, Advocacy Centre for the Elderly, (2011), p.18.
- Section 273.1(2)(b) provides that no consent is obtained if “the complainant is incapable of consenting to the activity”. Parliament was concerned that sexual acts might be perpetrated on persons who do not have the mental capacity to give meaningful consent. This might be because of mental impairment. It also might arise from unconsciousness: see R. v. Esau,  2 S.C.R. 777; R v. Humphrey (2001), 143 O.A.C. 151, at para. 56, per Charron J.A. (as she then was). It follows that Parliament intended consent to mean the conscious consent of an operating mind.”
- Chief Justice McLachlin in "R. v. J.A., 2011 SCC 28"; in Judith Wahl, B.A., LL.B., “Sexuality in Long Term Care Homes - the Legal Issues”, Advocacy Centre for the Elderly, (2011), p.35.
- Parliament has defined sexual assault as sexual touching without consent. It has dealt with consent in a way that makes it clear that ongoing, conscious and present consent to “the sexual activity in question” is required. This concept of consent produces just results in the vast majority of cases. It has proved of great value in combating the stereotypes that historically have surrounded consent to sexual relations and undermined the law’s ability to address the crime of sexual assault. In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it is inappropriate for this Court to carve out exceptions when they undermine Parliament’s choice. In the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to sexual assault is Parliament, should it deem this necessary.
- Chief Justice McLachlin in "R. v. J.A., 2011 SCC 28"; in Judith Wahl, B.A., LL.B., “Sexuality in Long Term Care Homes - the Legal Issues”, Advocacy Centre for the Elderly, (2011), p.36.
- "What they’re looking at is can you say when I become unconscious, as in this case, could I have pre-consented to sex?” said Jane Meadus, a lawyer at the Advocacy Centre for the Elderly in Toronto.
“But the broader implications are that I could consent today and say if I became incapable — I got dementia or I got in a coma or something — it’s OK for my spouse to come and have sex with me. And is that pre-consent really a pre-consent and what are the implications for the people who are, for example, in long-term care?”
- “She may be somewhat fearful. She may no longer have the capacity to withdraw consent. She may just go along, but that doesn’t mean that she is happy about it.”
- Jane Meadus; in “Supreme Court Ruling On Sexual Pre-Consent Could Affect Seniors With Dementia”, Toronto City News, (Nov 22, 2010).
- Capacity of adults with intellectual disabilities to consent to sexual relationships Sexual consent capacity criteria (1) knowledge of body parts, sexual relations, and sexual acts; (2) knowledge of the consequences of sexual relations, sexually transmitted diseases, and pregnancy; (3) understanding of appropriate sexual behavior and the context for it; (4) understanding that sexual contact must be voluntary; (5) ability to recognize potentially abusive situations; and (6) ability to show assertiveness in social and personal situations and to reject unwanted advances.
- Murphy, G., O’Callaghan, A., “Capacity of adults with intellectual disabilities to consent to sexual relationships", Psychol. Med,34, 1347–1357 (2004).; in Judith Wahl, B.A., LL.B., “Sexuality in Long Term Care Homes - the Legal Issues”, Advocacy Centre for the Elderly, (2011), p.43.
- …where a man does not engage in communicative sexuality, he acts either out of reckless disregard, or out of willful ignorance. For he cannot know, except through the practice of communicative sexuality, whether his partner has any sexual reason for continuing the encounter. And where she does not, he runs the risk of imposing on her what she is not willing to have. All that is needed, then, in order to provide women with legal protection from date rape is to make both reckless indifference and willful ignorance a sufficient condition of mens rea, and to make communicative sexuality the accepted norm of sex to which a reasonable woman would agree.
- Pineau, L., 1989, “Date Rape: A Feminist Analysis”, Law and Philosophy, 8(2): pp. 239-40; as quoted in "Feminist Perspectives on Rape", Stanford Encyclopedia of Philosophy, first published Wed May 13, 2009; substantive revision Wed Jun 21, 2017
- Unjust social arrangements are themselves a kind of extortion, even violence, and consent to them does not bind.
- John Rawls, A Theory of Justice, p. 302
- It is respect, it is decency, it is empathy and it is the cornerstone of a good, healthy sexual encounter.
- According to section 74 of the Sexual Offences Act 2003, someone consents when she or he "agrees by choice…and has the freedom and capacity to make that choice."
That’s a clear definition.
And there are some equally clear examples of when someone doesn’t have "freedom" or "capacity" to agree by choice or to "consent".
For example: if someone is under the age of 16, they don’t legally have the capacity to consent to sex. If someone is asleep or unconscious, they don’t have the capacity to consent. If they’ve been kidnapped or held against their will, they don’t have the freedom to consent.
- Likewise, having consented to sex with someone once or even several times in the past doesn’t mean you’ve consented to sex with that person indefinitely. Consent is not like a physical permit that, once issued, we can save for use at a future date. The person who willingly and enthusiastically had sex with us last night might not want to have sex with us this morning and that’s their right and prerogative.
The law is also very clear that a person can give their consent to one kind of sexual activity but not another in a single situation. For example, someone might consent to vaginal but not anal penetration, or they might consent to sex with a condom but not without one. Again, this is common sense.
- Katie Russell “Rape and consent: What you need to know before you have sex”, The Independent, (Tuesday 3 November 2015).
- Criteria for inferring sexual consent capacity. 1. Voluntariness: A person must have the ability to voluntarily decide, without coercion, with whom he or she wants to have sexual relations. 2. Safety: Both participants in the sexual behavior must be reasonably protected from physical harm (e.g., sexually transmitted disease) or psychological harm (e.g., undesired separation from each other). 3. No exploitation: A person should not be taken advantage of or used by another (e.g., someone with power or higher status) in a way that is inconsistent with voluntariness. 4. No abuse: Psychological or physical abuse must not be present in the relationship. 5. Ability to say no: A person must be able to communicate ‘‘no’’ verbally or non-verbally, and to remove himself or herself from the situation at hand, indicating a wish to discontinue the interaction. 6. Socially appropriate time and place: Either the person must be able to choose a socially acceptable time and place, or the person must be responsive to directives toward that end. Mental Retardation. 4, 264–268 (1995).
- Ames, T., Samowitz, P., “Inclusionary standard for determining sexual consent for individuals with developmental disabilities”, in Judith Wahl, B.A., LL.B., “Sexuality in Long Term Care Homes - the Legal Issues”, Advocacy Centre for the Elderly, (2011), p.42.
- “Everything you and I need, love, want, hate and value is what a person with dementia loves, hates, needs, wants and values,” she said. “So that need does not go away because someone has dementia. What complicates that need is the ability to make informed decisions about sexual behaviour as it does with all behaviour and to understand the consequences of those decisions.”
- Mary Schulz, director of education for the Alzheimer Society of Canada; in “Supreme Court Ruling On Sexual Pre-Consent Could Affect Seniors With Dementia”, Toronto City News, (Nov 22, 2010).
- Some schools recommend or require that for consent to be valid, it must be given while sober, and others rule that consent cannot be given when a student is “under the influence,” vague standards that could cover any amount of alcohol consumption. Some embrace “affirmative consent,” which, at its limit, requires that each touch, each time, be preceded by the explicit, verbal granting of permission. At times, the directives given to students about sex veer squarely into the absurd: A training video on sexual consent for incoming students at Brown University, for instance, included this stipulation, among many others: “Consent is knowing that my partner wants me just as much as I want them.”
- Sometimes, of course, there is no ambiguity, as when a woman says no, or sends visible, consistent physical signals that she is not consenting to a sexual act. But many schools no longer require women to say or signal no in order for an encounter to be considered nonconsensual. Affirmative-consent rules, particularly when written or interpreted expansively, do that directly; in California, Connecticut, and New York, affirmative-consent codes for college students have been signed into law. So do policies that treat women who have been drinking—but who are not by any objective standard incapacitated—as unable to give consent.
The problem with both types of policies is that they are intrusive and impractical. Couples are especially unlikely to adhere to contract-negotiation-style bedroom interactions (and it is no small intrusion on privacy to require them to do so). The proscription on drinking before sex is certain to be widely ignored; sexually inexperienced students (and even experienced ones) often drink in order to lower their inhibitions. And yet ignoring these rules puts men in great jeopardy should their partner later reconsider what seemed to have been a consensual encounter.
In the world outside campus, people who are merely intoxicated, not incapacitated, can legally consent to sex, even if they make poor or regrettable decisions. In many states, sex with an incapacitated partner is a crime when the accused knows, or reasonably should know, about the incapacity and intends to act without consent. Recently, some schools have adopted clearer standards for incapacitation, including the requirement that the accused should reasonably know about the incapacity in order for consent to be invalidated. But on many campuses, no such knowledge or intent is required for an adjudication to determine that a violation has occurred.
- Emily Yoffe, “The Uncomfortable Truth About Campus Rape Policy”, The Atlantic, (Sep 6, 2017).
The Dictionary of Legal Quotations (1904)
- Quotes reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 39.
- You cannot consent to a thing unless you have knowledge of it.
- Jessel, M..R., Ex parte Ford; In re Cauchey (1876), L. R. 1 C. D. 528.
- Parties cannot by consent give to the Court a power which it would not have without it.
- William Brett, 1st Viscount Esher, M.R., In re Ayhner; Ex parte Bischofishiem (1887), L. J. 57 Q. B. 168.
- I have very often had occasion to say, that acquiescence is founded on knowledge, and that a man cannot be said to acquiesce in a transaction if he is not proved to have had knowledge of it. I think that this principle requires to be attended to in all cases turning upon acquiescence.
- Sir G. J. Turner, L.J., Stewart's Case (1866), L. R. 1 Ch. Ap. Ca. 587.
- It is not reasonable afterwards to allow the party to complain of that irregularity, of which, if he had availed himself in the first instance, all the expense would have been rendered unnecessary.
- Lord Lyndhurst, St. Victor v. Devereux (1845), 14 L. J. Ch. (N. S.) 246.
- If a client be present in Court, and stand by and see his solicitor enter into terms of an agreement, and makes no objection whatever to it, he is not at liberty afterwards to repudiate it.
- Sir John Romilly, M.R., Swinfen v. Swinfen (1857), 24 Beav. 559.
- A man who does not speak when he ought, shall not be heard when he desires to speak.
- L'Amoureux v. Vischer, 2 Cornstock (New York) R. 281.
- I think it is now clearly established that counsel appearing for a party in an action is held out as having authority, and has full authority, as to all matters which relate to the conduct of the action and its settlement, and further that, notwithstanding a limit may have been placed upon the authority of counsel, the party for whom he appears is bound by such settlement unless the fact that the counsel's apparent authority had been limited was communicated to the other side.
- Lord Alverstone, Neale v. Gordon Lennox (1902) L. T. Rep. Vol. 18, p. 392, and authorities there cited. On appeal affirmed, T. L. B., Vol. 18, p. 791.