by Jason Pargin
As human beings, we all have the right to our own lives and control over our own bodies. Thus, doing something serious to someone else's body requires consent. Acts that require consent include:
- Acts that can give bruises and/or cause pain. A boxing match is not assault, and neither is playing around with martial arts — but only as long as everyone involved is in on it. Doing the same move on a non-consenting person is assault and/or battery, and no less.note
- Any and all sexual acts, including fondling — for example, grabbing a stranger's ass can be considered sexual assault, depending on the jurisdiction.
- Acts that cause permanent alterations on the body, such as tattoos and piercings. Giving someone a tattoo that wasn't asked for is not legal anywhere.
The discussion about consent is particularly complex when it comes to the sexuality known as BDSM, since this sexuality touches both the first and the second type, and sometimes also the third. (BDSM stands for Bondage, Dominance-games and Sado-Masochism. It started out as a combination of the old terms Bondage&Discipline, Dominance&Submission, and Sadism&Masochism.) However, the discussion is not in any way limited to that particular field: it also includes mainstream sexuality as well as all kinds of issues that have nothing to do with sexuality.
However, consent is not a simple matter; if it were, this Useful Notes page wouldn't exist and there wouldn't be lengthy legal trials where two parties disagree on whether consent was given. Part of the problem is, while laws describe which sexual acts are not allowed: those where those involved are too close in relationship by blood or marriage (sex is typical prohibited between siblings; parents and children; grandparents and grandchildren; stepchild and stepparent; and sometimes between cousins); where either or both are underage (the "age of consent" worldwide ranges from 12 to 18, with 16 being the most common); or against their will, through force, threats, intimidation, or use of the person's mental incapacity or physical helplessness. Now these are pretty clear, however, there can be problems when the statutes criminalize sexual acts done without the victim's consent. Why is this a problem? Because in no case does the law define what "consent" is.
Let's see if we can do so. First, does the person reasonably understand what is happening? Second, does the person have the right to stop what is happening without external consequences? Third, does the person have the right to require reasonable protections? If the answer to any of these questions is “no”, the situation has taken a horrifically wrong turn. Let's go over each of these:
Reasonable understanding means you know what's going on and what to expect. If a guy and a girl are on a couch heavy necking, and without further preamble he reaches under her dress, pulls off her panties and positions himself for penetration, that's certainly not what she was expecting given what was happening immediately prior. Even in the most charitable interpretation, it may have been expected, but not without a handful of intermediate steps and requests for consent being involved.
Being able to stop without external consequences means that you're not being blackmailed or forced to do whatever is happening by extortion or threat to others, nor threatened with injury or adverse consequences for refusing. The other person can leave (or tell you to leave) or refuse to see you again, but they can't hurt or injure you, nor cause you problems with other people.
Consent can be more problematic when there is a power imbalance. What if a boss asks for consent to sex from an employee? She may say "yes" because she needs the job, not because she wants to have sex. What if a man drives a woman to his country cabin in the wilderness and then asks for her consent? (she doesn't have a car and it's 100 miles from her home). What if a man who is working as an immigration official asks a woman seeking refugee status out for dinner and then asks for her consent to sex. In each of these examples, the woman may feel she can't truly say no. (Note: these scenarios could also arise with same sex situations).
The right to reasonable protections means they can insist on means to warn of the need to stop, and for use of any reasonable birth control and/or disease protection with respect to how well they know you and your history. Two people who don't know each other or who are in a non-monogamous relationship should use condoms or dental dams. Two people who know each other and have knowledge the other has no diseases might use a non-barrier contraceptive, and so on.
This also includes the use of "safe words" to allow things to stop if it goes too far, especially if they're going to ignore "no" or "stop" when people are playing games involving fake non-consent (like when one plays the homeowner and the other plays the "burglar" who broke in and decides to "take advantage" of them, or the other way around). Or people doing BDSM, there may be minor amounts of pain they don't mind or actually like, but they must be given a means to indicate something is wrong to allow things to stop.
We can divide consent into three flavors. Permission, plain consent, and implied consent.
Permission
Permission is obvious explicit approval in advance. Two people are in bed together fooling around, and one says to the other they can go ahead and get inside them whenever they want. There is no doubt that consent has been given, and the person doesn't have to worry they might do something the other didn't like or wasn't ready for.
Even permission isn't 100% simple, though. A person may give permission for sex at 7 pm then revoke it at 7:05 pm for no reason other than "I don't want to now".
Plain Consent
The simplest form of consent is plain consent. Someone saying "uh, yeah, sure" or whatever when asked. If a person is mute, they may give a hand signal instead of saying "yes".
There can still be challenges with plain consent. Let's say a man asks a woman if she consents to "have sex". She says yes. However, he and she may have different interpretations of what she has agreed to. He may think it includes acts X, Y and Z, but she only thought X was being OK'd. As such, some consent experts recommend asking "can I ___ your ___"(fill in the blanks). This way, the other person knows exactly what you're asking to do.
Implied Consent in an existing situation where intimacy is already established
This one's a little touchy, because some people feel there is no such thing, but in real situations, it's probably very common and expected. A man and a woman are in bed together, he's been performing oral sex on her for some time and she's enjoyed it. So then he decides to have his fun. He uses his hands to push her legs apart, climbs on top of her, prepares himself, then gets inside her, taking a full ten seconds to do so before he starts moving. She clearly knew what he was going to do, and said nothing. She did not say it was okay, nor did she tell him no. Given the circumstances, it is reasonable to presume she consented to this.
With the possible exception of when the person has permission, there are always questions that can occur. What if the person doesn't know what he or she is getting into? What if they're not in a position to say no?
More than anything else, except in the case of permission (because permission is consent in advance), the other person must have the capacity to say no any time before something happens. And once something does happen, even where permission was given, they have every right to stop it, to "revoke" consent — even when things are in progress, or rather, especially when things are in progress. Of course, this doesn't apply retroactively; but it absolutely does apply from that moment on, with no "grace period" beyond the minimum time physically necessary to stop the now non-consensual action.
Furthermore, consent requires equality between the parties in terms of power and responsibility, which is why children and the mentally disabled are considered incapable of consenting with able teenagers and adults. And even between people of age, there can still be issues about knowing what they are getting into and not getting exploited, which is why the ethics get trickier when there are issues of power and authority (such as teachers and students, supervisors and employees, coaches and sports team players, etc.). See Consenting Of-Age Parties and Informed Consent below.
We also have the reverse issue, with consent being given such high priority that it actually takes away people's right to their own bodies. See Implied Consent below.
Consenting and Age of Consent
The idea that everyone involved is not only consenting, but also old enough to understand and give consent.
Most places have a set of fixed rules established by law (with some exceptions) called "age of consent." In the United Kingdom, Canada, 31 U.S. states and the District of Columbia, the age of consent is 16. In 8 U.S. states, the age of consent is 17, and the other 11 states set it at 18. Outside of North America it gets murkier; Japan's default age of consent is 16, parts of Mexico have it as low as 12, and some countries in Africa and Asia skirt the issue entirely by vetoing sex unless the couple is legally married (which itself has a varying age restriction depending on the country).
A case worth mentioning is what happens if someone moves from one nation to another where age of consent is different. In the case of a 16-year-old moving from Japan (16) to California (18), they would simply have to go by the California's consent laws. But what about the reverse, moving to Japan to do something (or someone) that would be below age of consent in California? It turns out most nations have additional laws to discourage this, most of them stating the eloping couple would still have to follow their nation of origin's consent laws. Say an illegal couple featuring an adult and a 15-year-old born in California moves to Japan to consummate their relationship; they're basically announcing that they're breaking Californian law and will be deported back home to be tried under Californian law, being prosecuted for their original crime as well as every sort of "evading justice" charge under the sun.
Then there are exceptions to the rules because it isn't thought to be a good idea to put some kid in jail because they're having consensual sex with their boyfriend or girlfriend who just happens to be below the normal age of consent when the two of them are close in age — for example, a 15-year-old and 16-year-old, in some places. So exceptions are sometimes made; for example, in Maryland, the age of consent is 16, but it's legal to have sex with someone 15 if you're under 21. In Colorado, the age of consent is 17, but it's legal to have consensual sex with someone 15 or 16 as long as you're no more than 10 years older. In California, all sex with anyone under 18 is a crime unless the two are married (yes, that means if a 17-year-old boy is having consensual sex with his 17-year-old girlfriend, both are committing a crime)* , but the crime is reduced from a felony (with prison time of at least 3 years) to a misdemeanor (maximum jail time of six months and a fine) if they are no more than three years difference in age. note
It's sometimes been said when there's an issue of consensual sex where one or both are below the age of consent, the only issue is what their parents think. It may be awkward as all hell, but a child choosing to be open and honest with their parents about their (prospective) sex life is far less unpleasant than the alternatives. If their parents are okay with it, it doesn't matter if it is illegal or not, and they might even help by permitting the couple some privacy or supplying condoms or some such; the couple wouldn't turn each other in, and their parents won't either, so the police don't know and nobody's getting into trouble. Then there can be cases where the parents are a bit too open to the idea and actively enforce it and/or someone in the couple is flagging about whether they actually want to "do it" or not. In these cases the couple has not given clear consent to each other and the act should not proceed; the parents cannot give consent to sex for their own child, and to attempt to do so is the very definition of illegal and invites all the consequences thereof. In times like this, sometimes the parents vetoing the encounter is just what the unsure couple needs to hear. And of course, if the parents follow the letter of the law and give the couple a Blunt "No" from the onset, then that's that, and defiance of this means all punishments from either the parents or the law apply.
Rather than worry about all of these rules and exceptions, for the rest of this article we'll presume we're referring to situations that comply with local age of consent laws.
Informed Consent
The idea that everyone involved is not only consenting, but also understands what they are consenting to.
Problems with Consenting At Age and Informed Consent
While both constructs are useful, they are far from waterproof. What if someone is of age but not informed? Scams are not cool! Or what if someone who's not of age is "informed" and consents to something that is not safe for underaged people and later regrets it? One of the main points of having age limits is that kids should not be forced to take that kind of responsibility! It's not their own fault if they get into a situation that hurts them, no matter how good an idea it seemed at the time. And also, what if someone is technically of age and technically informed, but has a mental handicap that makes them unfit to make the decision?
This is the pitfall with Informed Consent: be it due to misunderstanding, mental handicap, or youth, that someone should not properly give consent, but knowingly or unknowingly did so. Should the law decide this to be the case for the affected party, then the violator has committed a crime and will be tried accordingly, sometimes even if they themselves were similarly misinformed/handicapped/naïve. The victim likely won't face the wrath of the law in this case, but they will still have to deal with any physical, mental, financial, and social fallout, which depending on the case can be just as bad or even worse.
Implied consent
We also have the issue of people not wanting to formally ask each other for consent all the time. For most people in a relationship, it would feel quite awkward if your partner was never allowed to touch you without having to explicitly ask for consent every time.
This can be handled by giving consent beforehand ("permission"); for instance, asking your significant partner to wake you up with… well, with love. Is such stated consent even needed? Can't lovers just hug each other without asking permission? And can such consent even be given? While most people would probably answer "yes" on both questions, there are those who say no on one or even both. The argument goes that even if you consented beforehand, you might be having a bad morning now and not want any contact — there's no way to know until afterwards, and by then it's too late. Others would argue that this extreme defense against sexual oppression becomes oppressive in itself.
Couples that know each other will often have a sense of how their partner feels, or may simply try intimacy and if the other person gives an indication or says they're not interested, then they stop, and it's understood they've not consented, because they know each other the attempt isn't "wrong," and by stopping they show that they respect the other person.
For implied or generic consent like that to work, though, it's necessary for those involved to find out what they like. You can consent to "experiment," but in that situation, it isn't clear what you've consented to. There is a lot of controversy over what constitutes an acceptable context for experimentation:
- Is it feasible to revoke your consent?
- Must one have a Safeword in order to maintain one's freedom to revoke consent?
- If not, how can you tell that you have that freedom?
- Are you experimenting with a person who knows you well?
- Are they paying enough attention to your reactions and general well-being?
In BDSM relationships, it is common to work out a limited set of circumstances under which experimentation is allowed, and establish a Safeword in case the experiment goes wrong somehow. Some people think that all sex, and perhaps all physical contact, should be conducted this way. But many people don't play by those rules, and mostly work out what's OK and what's not by trying things and seeing what happens.
There are some cases where that might be acceptable; it is impossible to ask for consent to talk to someone, for instance, since that would itself require you to talk to them.note (Actually, that's not completely true, because we've had a method for decades to do exactly that; kids learn in school to raise their hand to ask for permission to speak.) It is also common to block a person's path to get their attention, shake their hand, and occasionally even enter their home without asking first, and without being explicitly given permission. These things are established as acceptable by conventions like body language, and by the concept of harassment — you may have the right to talk to whomever you like, but they can revoke that 'default consent' by telling you to go away, and can even sue you for failing to do so.
Precisely what standards of consent to apply to what forms of behavior is a very tricky question.
The law also has several cases of implied consent which apply away from these personal situations. A few examples: Every time you get behind the wheel of a car in the United States, you have consented to allowing law enforcement to check your blood alcohol levels. Being licensed to drive is a privilege, not a right, and taking advantage of that privilege comes with agreeing to certain conditions, including agreeing to be drug or alcohol tested, identifying oneself to police and providing necessary information, obeying all relevant traffic laws, etc. If you do not or cannot agree to these terms, the privilege of driving can be restricted or revoked entirely. You have not "lost" anything, per se; you still have trains, buses, taxis, ride shares, bicycles, or just plain walking at your disposal to get you where you need to goSov Cit issues . The fact that the above may be extremely inconvenient is not generally the government's problem. Refusing to take a police-ordered test — blood, urine, or breathalyzer — cannot be taken as an admission of guilt, though if you refuse, your license will almost definitely be suspended whether you would have passed the test or not. In the United States, certain firearms permits give consent to being continually ready to prove registration of the weapon to law enforcement whenever asked to do so. Likewise, many countries (notably not the US) have implied consent for organ donation. Unless you specifically refuse to donate, the legal system assumes you are consenting to donate your organs upon death.
Problems with implied consent
The problem with this is that some people consider others to have given implied consent even when no such implication was intended at all. The most infamous version of this is guys who believe that if a woman is wearing clothing considered to be scanty by the standards of her culture and or locale, she's implying that she wants unknown men to stare at her, touch her, or worse. This has given some people (mostly women) a certain aversion to the concept of implied consent.
As well, in some cases, men have invited women into their bedroom and then claimed that the woman coming into the bedroom was implied consent. From the woman's point of view, she may have simply been coming into the bedroom to talk or sleep on the bed.
Consent and Implied Consent — Medicine and Sports
Implied consent is also a legal term in medicine. This applies to the United States, and your local laws may be different. A full discussion of this is way beyond the scope of this article, but these kinds of dramatic life-and-death situations come up in fiction and so are worth examining. First, all medical procedures — period — require informed consent. A rational patient must be provided reasonable information about proposed interventions and also must be allowed to refuse care. However, when a patient cannot make decisions for themselves rationally, they have given the health care worker or rescuer implied consent to go ahead and execute appropriate care. If you are dying, and you are in your right mind, you can still wave-away any help and your autonomy in this matter must be recognized. If you fall unconscious before help arrives, your rescuers should assume you wanted help.
To be "rational," you must be of legal consenting age, must be judged to be able to make sound decisions, and must not be in some form of altered mental status such as intoxicated or unconscious. The classic example is when a paramedic finds a patient knocked out in a car accident and heavily injured, he does not have to wait for the patient to come to before beginning treatment and evacuation. A heroin addict who is semi-conscious cannot wave-away treatment for his overdose. A child or a person with severe schizophrenia cannot make many decisions at all. That said, involuntary treatment for mental illness is controversial. Some say it can further stress an ill person.
This leads to problematic situations, and as such there are some exceptions. For example, parents cannot deny life-saving treatment to a child because it contradicts the parent's religious views. In this case, the physician is empowered to legally make that decision against the child's and parents' wishes to save that child. When a person's mental state or drug intoxication makes them ineligible to make a rational decision, a physician can be empowered to order treatment despite these objections. All of these situations fall under implied consent, with the idea that a person who looks back on the situation rationally or as someone of legal age would likely consent to receive treatment and so it should be assumed on behalf of those who cannot make the decision themselves. As soon as a person "comes to their senses," they can revoke consent immediately.
A patient who is losing consciousness who has not revoked consent continues to give implied consent right until they are out. For example, a patient who has been wheeled to the OR and prepared for surgery could refuse care and be wheeled right out of the OR. Once the patient is under (presumably having not objected while conscious), implied consent governs the entire procedure until the patient awakens again. Likewise, if a complication is discovered, your consent is still needed for the new situation. For example, a patient who is in for an appendectomy is opened and the surgeon discovers a malignancy. The surgeon cannot simply attempt to remove the cancer "while he's in there anyway," and the patient must be informed about the discovery and allowed to give consent to the tumor's removal. The above restriction generally does not embrace complications which arise during the course of surgery, meaning that if you say have an allergic reaction to a drug or heart arrhythmia during surgery to repair a broken leg, they are able to act on it.
You can preemptively revoke consent to certain procedures with an advanced directive, the most famous of which is a DNR (Do Not Resuscitate) order. A patient with an advanced directive has stated their wishes and those must be honored regardless of the outcome or objections from family members. Another strategy for handling these decisions is appointing a surrogate to make decisions for you, such as with a power of attorney. Furthermore, in a few special situations, such as getting an abortion or treatment for STDs, a minor does not have to consult their parents and can procure services without their parents' consent * . Finally, an advanced directive must be presented before the crisis situation hits and your family cannot simply vouch that you have one (as they may not have your wishes at heart). Without a DNR or power of attorney, medical personnel are assumed to have your implied consent, regardless of what you told your family. Don't just tell your family any end-of-life or emergency care instructions. Put it in writing.
There's a few situations where a DNR or advance directive preventing care go out the window. Generally, pre-hospital responders (EMTs, paramedics, even civilian bystanders) aren't bound by it, as there's usually no way to verify it in the field and they respond in situations where minutes, even seconds, can count. Some ambulance corps will allow you to file a DNR with them in case they need to respond, but this is far from universal. Also, any overt indication that you want assistance, even in a hospital setting with an advanced directive or power of attorney on file, renders those orders invalid.
There is one additional issue here. An extremely popular treatment for autism known as Applied Behavioral Analysis or ABA for short (which happens to be the only autism treatment American health-insurance is required to cover) actually mandates practitioners to violate the patients' consent (though technically a patient younger than 18 can't consent, so the parents consent for the patient). ABA holds the dubious distinction of being a treatment method which 100% of first-hand patient testimonials advise against, citing (among other things) Post-Traumatic Stress Disorder and fear of asserting personal boundaries, which in turn can lead to considerable complications concerning credibility of consent in contrasting contexts.
And then there’s the issue of potentially hazardous body modifications often performed on children (or babies) for reasons that don’t involve immediate need for medical attention, often as a traditional rite of passage; the most notable among these in the West is circumcision, a procedure the opponents of which usually bring up consent as an argument. Ear piercings performed on babies or young children are generally allowed, as they are minimally invasive, have no debilitating effect, and can be healed at a later date. Anything more invasive or permanent, such as body mods or tattoos, will almost certainly be rejected even with parental consent.
Finally, another area of health care where informed consent comes into play is billing and insurance, at least in the United States. While patients sign forms upon receiving medical care agreeing that they consent to pay the cost of treatment, or whatever portion was not covered by insurance, oftentimes those costs are opaque, inconsistent between hospitals/states, and difficult to predict in advance. A common occurrence is for patients to consent to undergo procedures or be treated by a doctor without being informed that the treatment isn't covered by the patient's insurance — or not to consent at all, being unconscious at the time (ambulance fees are a frequent example of this). Sometimes, these fees aren't associated with specific treatment at all but with simply being in the emergency room at all (the "facility fee," meant to cover the hospital's operating costs). Then, the patient is surprised by a bill in the mail weeks or months later, which can sometimes range upwards tens of thousands of dollars. Whether patients consented to these, or would have consented to treatment with full knowledge of the price tag, has come under much discussion recently.
Implied consent also arises in sports. If you play ice hockey in Canada, a sport which involves body-checking (intentionally skating into the other player), you are deemed to give implied consent to be body-checked, with the risks of injury that that entails. However, this isn't a "blank check"; you are only deemed to have given implied consent to be checked during the game play and within the rules set out in the game. As such, if you have the puck, and are skating down the ice during the game, if the opposing player slams into you and knocks you into the boards (side of the rink) so hard that you're knocked out, you can't charge him with assault. On the other hand, if you're standing on the ice before the game listening to the national anthem and the same player body checks you into the boards, they could be charged with assault (since that wasn't part of the game).
Safe, Sane, And Consensual
One of the most popular ways of trying to deal with all these problems is the moral code known as SSC: Safe, Sane, And Consensual.
- Safe means that the risks are known and minimized: That people know what they are getting into and handle it responsibly.
- Sane means that everyone involved is at an accountable mental capacity: No one is drugged down, too insane, or too young or immature.
- Consensual means that everyone involved participates by their own free will.
This is meant to cover all the bases to a reasonable extent. Safe and sane includes maturity when maturity is needed, and being informed to the extent one needs to be informed.
Problems with SSC
Not counting people who try to find semantic loopholes to get around the spirit of the rule while still pretending to uphold it, there are still three problems with SSC:
- When should something be considered "Safe"? One reasonable interpretation is that risks are known and minimized. However, one could also take it as a totalitarian demand for total safety: No risk whatsoever can ever be tolerated. This is unreasonable, because nothing is ever totally safe. Leaving your home is not safe; you could get mugged or ran over by a car. Staying in your home is not safe either — you could be attacked by a robber, a plane or tree could crash into it, or there could be a fire or whatever. Yet there are people in the BDSM community who (with complete sincerity and very literally speaking) accuse each other of being unsafe because they have someone sit in a chair without having the chair bolted to the floor and the person tied to the chair — because, what if they happened to fall off the chair? On the other end of the spectrum, some people consider lethally hazardous activities to be "safe" even as others insist that they are hugely underestimating the risks.
- When can a person be considered sufficiently sane for a certain activity? There is room for some really valid discussion here, regarding, for example, the line between doing SSC BDSM and being self-destructive. However, some people land in a position that people with not-so-severe mental problems consider robs them of their rights at their consenting age. Some people have difficulty communicating when in a heightened emotional state. That makes it impractical for them to communicate during sex, even if they have a Safeword. Does that mean they shouldn't be allowed to have kinky sex? Does it mean they shouldn't be allowed to practice martial arts?
- Also, we still have the problems with implied consent described above.
Risk Aware Consensual Kink
To get away from the previously described problems with SSC, some people in the BDSM community prefer instead to talk about RACK: Risk Aware Consensual Kink. RACK is essentially the same as Informed Consent, but with the added implication that even the most risky and self-destructive behaviors are acceptable, provided that the risks are understood beforehand, and the consent is freely given. This presents its own problems:
- It limits the code to kinky sexuality, excluding mainstream sexuality as well as non-sexual practices.
- The issues of how safe and sane something really is are interesting and important issues. It's often better to debate them than to bypass the issues.
- If you refuse to discuss safety and sanity, the people who consider these issues ethically important will simply ignore you.
The first two reasons are also the reason why the safety-and-consent trope is called Safe, Sane, and Consensual rather then RACK. Limiting the trope to kinky sexuality would make it too narrow, and the debate about where the line should be drawn is what makes it a trope in the first place.
