Whenever cases of sexual abuse and violations are in the media, there is always a huge discussion about consent and what it entails.
There are those who argue that a woman who goes home with a man after a night of drinking has consented to sex, otherwise she would have gone to her own place.
There are others who say that a woman that dresses in short or tight dresses when going to meet a man is hinting at willingness to have sex.
Others say that accepting drinks from a man implies that you are open to returning the favour in kind.
A couple of years ago, a friend living in Kilifi said he was going to marry a 16 year old girl. When we voiced our disappointment and pointed out its illegality, he said that the girl already had a child by another man and she was mature.
Consent is a grey area whose boundaries people push in pursuit of their depravity, or in defence of it. Yet the word consent, by definition, is permission voluntarily and consciously given in full knowledge and acceptance of consequences. This means that consent can be withdrawn at any time if a person changes their mind at any point, even when making out.
Withdrawal of consent means the person is not willing to accept any outcome or consequence of sex and at that point, continuing with sex becomes a violation of their person. Perhaps if we understand what consent is, fewer people will be violated.
Here are a few signs that consent has been denied. Violating these is punishable under the Sexual Offences Act.
This is a clear one. If you don’t want to drink tea, you say no and expect that no one shall force it down your throat. If you are at a hotel and the food is too salty for your taste, you say no and expect that the waiter will not force your mouth open and put that food in there. If you ask a person to leave your property and they refuse to leave, then by law, they become trespassers.
Similarly person that says no to sexual intercourse expects their decision to be accepted and respected. Ignoring this turns the situation quickly into a rape case.
It does not matter if you were both consciously naked. A no is the most direct denial of consent.
BEING UNDER THE INFLUENCE
Consent needs to be given voluntarily and consciously. A person who is drunk is unable to consciously give consent. People have a tendency to blame things on the bottle, but that is not a legal defence. A recent case that made headlines was the conviction of rugby stars Alex Olaba and Frank Wanyama. They claimed that they were all drunk and had consensual sex with musician Wendy Kemunto.
Under the law, a drunken person or one whose judgment is affected by drugs (for example sleeping pills) is unable to give consent because their judgement is impaired.
This is also an obvious denial of consent. A person who physically resists touch, attempts to undress them, and intercourse has denied consent. This point is for the benefit of those who believe that ‘No sometimes means yes’.
Many women find themselves in isolation with people they trust, and it has happened many times that these trusted people take neither the ‘No’ nor the physical resistance seriously.
Always remember that consent has to be willingly given.
By law, the age of consent in Kenya is 18 years. This means that no matter how big-bodied or mature-sounding a person is, they cannot legally give consent.
This is a cultural and economic problem in areas where girls as young as 13 are married off to the profit of the parents.
It might be culturally acceptable, but in almost all cases, the girls are married off against their will. It not only puts an end to their education, but also puts them at direct risk of rape.
An unwilling bride will most likely not be a willing sexual partner.
HAVING TO INTIMIDATE OR COERCE A PERSON
Intimidation and coercion means obtaining consent through use of threats of harm, or inducing other fears like loss of opportunities.
Most people who intimidate are people in position of power over their victims like employers and providers or breadwinners.
The consent obtained is not voluntarily or wilfully given. It is consent obtained from fear, and any sexual intercourse becomes rape.
Persons with mental impairments are not able to communicate effectively. Their speech is not coherent, and they cannot understand a situation and consciously agree or disagree. So it is impossible to obtain consent from such people.
It is also difficult to know whether they are aware that sexual intercourse is taking place, whether they are okay with it and if they want to stop it.
Under the law, you cannot obtain consent from a mentally impaired person.