Understanding Consent

“Rhodes Confession 9926: It really does frighten me to my core that there are still so many boys here who don’t understand consent.”

Although this confession was posted in 2016, posts like this are still circulating the various social media pages, the most recent being the #MeToo campaign. The idea behind this campaign is to show the extent of sexual violence in the world with victims everywhere posting #MeToo on their social media pages. This campaign has showed that a year later, Rhodes Confession 9926 (despite its heteronormative nature) is still relevant as sexual consent is still a major issue in modern society. Consent is even more important in a university setting where the “hook-up culture” is so prevalent. The problem is that there appears to be some kind of misunderstanding about consent, and it is well past time that we sit down and engage with the topic again, however uncomfortable it may be for some people.

First off, what is consent? “Consent is basically saying yes. If you say yes then you have consented,” says Kristen Breero, an alumna of the Rhodes University law department. “The differentiation is that some people consent with their bodies and others via words,” she continues. In law, this is known as tacit (non-verbal) consent.

So why is consent important?

“Consent is essentially an agreement, and this agreement vitiates force,” says Brahmi Padayachi, an ex-magistrate and senior lecturer of evidence and criminal procedure in the Rhodes law department. “Consent is important because if you consent to something, you are agreeing to be bound to the consequences of what you consent to. This is why it is so important to understand what you are agreeing to,” she explains.

What is perhaps the biggest issue regarding consent is not specifically how it is defined, but when it is present. So when is it not consent?  “This is when your power of choice is removed, or when you make it clear that you do not want this,” says Padayachi. This is all well and good when it comes to express consent, but when it comes to tacit consent it can be substantially trickier. “I think the problem comes in where the other party assumes that a person has consented,” says Breero.

According to Padayachi, this is an issue that the courts are constantly having to address. A person will claim that the other party consented by not speaking out against their advances, but the other party will argue that they were too afraid to say anything. In terms of the law, silence is treated as consent unless the victim’s power to speak up was removed due to factors such as being unconscious, bound, or gagged.

Chelsea Haith, who served as media officer for the Gender Action Project (GAP) during her time at Rhodes, finds this approach extremely problematic. “Even if a person has given tacit consent, they may feel pressured and so it isn’t necessarily true consent,” says Haith before continuing to raise another important point: consent as the result of coercion. She argues that if someone is coerced or manipulated (for example if they are threatened with being “dumped” if they do not consent), it is not true consent in the same way that saying yes while intoxicated/drugged is not true consent.

It is also important to note that according to the law, consent can be withdrawn. Haith explains how leading someone on, going home with them, or even lying in bed naked with them does not equate to consent. Consent can be withdrawn at any point prior to or even during the act, however it cannot be withdrawn afterwards. “You can’t withdraw your consent just because you regret sleeping with someone,” says Breero. “Withdrawing consent after the act does not make it rape, even if you would not consent to it again as this would lead to a ‘Salem witch-hunt‘ with people being accused and convicted based on flimsy evidence,” says Haith.

Another important point which needs to be addressed is the idea of “non-consensual sex”. “There is no such thing as non-consensual sex. Non-consensual sex is rape,” says Hai

th. Haith subscribes to the More Than Yes campaign’s thinking that consent must be continuous and enthusiastic. She prefers to define consent by what it is not, which is anything but yes. She explains that although some people may find it awkward to outright ask for consent, it does not need to be an awkward conversation but rather a standard practice. This is an important concept, particularly in a university setting.

Consent should ultimately be regarded as a standard concept that does not discriminate based on gender, culture, sexual orientation, or any other such factors. There
must be clarity and agreement between both parties and at the end of the day, it is up to both parties to ensure that they have each other’s consent. “We are responsible for our own decisions, and must live with their consequences,” says Padayachi. So before you do anything, make certain that you have consent. All it takes is a simple question.

Photo (2)

Rhodes University alumna Chelsea Haith calls for students to get consent before engaging in sexual intercourse. Photo by: Jeremy de Beer

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