It is time we all taught the young about sexual consent

What is it about sexual consent that we can't quite nail it down with precision? Adults are struggling with it, children are perceived as indifferent to it, parents find it icky to talk about it to their children and so, it’s now being ironically forced on teachers to deal with.

What is consent to begin with? The Sexual Offences Act defines consent as “a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice”. Taking this consideration, let’s apply this definition to some scenarios.

ASSUMPTION

A person gave sexual consent then became unconscious after being intoxicated. Is there consent? What of a person who is asleep, is there a capacity to give sexual consent? If someone mistakes the identity of the person they have sex with, is there consent? A third party who gives consent on behalf of another person, is this valid sexual consent? What of the mentally impaired person, whether temporary from dementia or permanently from schizophrenia, who is saying yes they consent, is this consent in line with the statute? If the person verbally said yes and, as you carry on their eyes glaze over, they appear stiff and disinterested, is there still consent? And last but not least, one that is shockingly being debated, can a child give sexual consent?

We live in a hyper sexual cultural society where the generation coming after us is engulfed in mass sexual information and a majority of it is far grossly inaccurate and misleading. In this culture, we have also amassed sexual myths that have made sexual consent a convoluted principle. We are consistently and inadequately dealing with sexual assault through quick presumptions. Questions like, why didn't they immediately report it? It therefore cannot be true. You only came forward to ruin the person’s life or seek attention are projected at the victim. And the commons favourite, there is no evidence.

Before making an uninformed assumption for either party, perhaps we ought to ask ourselves the pertinent question preceding the matter; was there consent? To correctly answer this question, we must be capable of knowing what consent is in practical terms. The Act describes it as the person agrees by choice. What then would limit a person’s choice for there to be no valid sexual consent? Coercion, undue influence, and necessity come to mind.

WORST VERDICT

The Act goes on further to insist the person must also have the freedom to make that choice. Is a person who is kidnapped, unlawfully detained or restrained capable of giving consent? The Act would say absolutely not.

Analysing the capacity to make that choice next, when would there be diminished capacity? If at the material time the person is unable to decide for themselves because of impairment, or a disturbance in the functioning of the mind or brain, then they are incapable of giving a valid sexual consent. Crucially, it should not matter if the impairment is permanent or temporary, it still invalidates the consent given at the time.

More to the point and one that has irked most of the populace given the World Worst Verdict of 2017, capacity cannot be established through appearance or aspect of behaviour, leading to “justified” assumptions about the present capacity to give valid sexual consent. And so a child being under 18 years who appears and acts mature can never be said to have been capable of giving consent.

Notably, the Act does not state a person can give consent if he or she agrees by choice, in exclusion of the freedom and capacity to make that choice. The two are not mutually exclusive. But I find myself asking, what level of consent is the benchmark for the statute? Express, implied or continued, enthusiastic consent? After all, how else will we avoid the pitfalls of date rape that later turn into “heartfelt apologies” with victims acquiescing?

PERPETRATOR

Even more pertinent, where does the onus lie on who teaches children valid sexual consent inclusive of sexual relationship and education? How else will we ensure children avoid the pitfalls of being molested and sexual assault in the future? With online predators lurking and, on the rise, who is responsible for child sexual protection? I for one consider teachers have enough, to deal with yet another delicate issue. While sexual consent might be a matter for parents to deal with exclusively as part of their parental responsibilities, most of the time spent by children is in schools where some of the sexual molestation has been reported. For sexual consent, and sexual relationship and education to cover all bases, it must be a collaborative effort between parents and teachers.

The earlier we begin education on sexual consent, the better we stand a chance of shunning sexual myths and avoiding sexual assault either as victim or perpetrator.