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Consent: Does yes always mean yes?

Post by on Thursday, December 23, 2021

First slide

It is said that the consent of the governed is not consent if it is not informed. The latest buzzword in today’s society is 'Consent'. Even though everyone seems to be talking about consent, is it even properly understood by all those who use it? What is consent and what does it entail? Today we will explore the concept of consent and understanding its true meaning.

The dictionary meaning of consent states that “Consent is an agreement between participants to engage in sexual activity. Consent should be clearly and freely communicated. A verbal and affirmative expression of consent can help both you and your partner to understand and respect each other’s boundaries.”

Not everyone is capable of giving valid consent. It cannot be given by minors, people who are under the influence of alcohol/drugs or any other substance that induces intoxication. It is not consent if given under duress or threat as it has not been freely given. This aspect of free consent also includes in it the unequal power dynamics such as that of a student teacher or an employer-employee. Both are instances that show relationships where consent might have been given under pressure.

Types of Consent

Coming to the next question of how many types of consent are there, we can broadly classify it into six types:

Informed consent

Informed consent is the act of obtaining consent after duly informing the person concerned of all the possible outcomes and consequences of granting consent. This type of consent comes with a rider that it must be taken from persons who are competent, have voluntarily given their consent and have fully understood what they have been told.

Implied Consent

The concept of implied consent has been derived from situations where mere participation in a certain activity is considered to be proof of consent. This is acceptable for research studies that provide anonymity, such as opinion surveys.

Explicit consent

Explicit consent, also known as direct or express consent, is when an individual is presented with a decision on whether they authorize the collection, use, and/or disclosure of their personal information before data is collected. An example of this is social media sites etc. that use the user data for marketing activities.

Active consent

This type of consent refers to a consumer being given a specific statement to agree on and they show their consent by "actively" agreeing. This can be defined as another form of explicit consent.

Passive Consent

This again is another type of Implied consent wherein the consumer or the consent giver is implied to have given consent unless it is explicitly stated otherwise by them.

Opt-out consent

This type of consent is the one wherein an option to opt out or decline the consent is given to the consumer. If the consumer proceeds without clearly declining the consent, then the consent is said to have been granted. This type of consent is usually done in writing.

Having said so much about consent, it is also imperative that we discuss how consent can be properly given. Consent is said to be given when:

·        Each person is of age, awake and aware and feels free to make their own choices.

·        Each person wants to do each activity and is actively participating.

·        Each person asks for consent to do each activity.

·        Each person gives consent through words and actions.

It’s important to remember things like silence or a nod are not enough to establish consent. It is not consensual if a person:

  • Says out loud or indicates with their body language, “no”.
  • Changes their mind from a “yes” to a “no” with their words/actions.
  • Says “yes” to one thing but “no” to another.
  • Is impaired by alcohol or drugs.
  • Is unconscious or sleeping.
  • Is intimidated, pressured, threatened or coerced.
  • Is under the age of 18 or does not fit the “close in age” rule.
  • Is in a position of trust or authority (e.g., a teacher, coach, employer, etc.) with a young person under the age of 18.
  • Seems unsure (e.g. looks nervous, pulls away, etc.).

One should never forget that:

  • Saying “yes” to one thing doesn’t imply “yes” to something else.
  • If you move on to something else, each person needs to consent again.
  • Pressuring someone to change their mind is not consent.
  • Consent if given yesterday does not necessarily imply that it shall be given today too.

And most importantly:

  • It’s not consensual if someone can’t give consent (e.g. because of substance use, unconsciousness, age, etc.), even if they say “yes”.

·         It’s not consent if you make me afraid to say no.

What’s the age of consent?

The 2013, Criminal Law Amendment Act increased the age of consent from 16 years to 18 years which implies that any sexual activity below the age of 18 years irrespective of their consent would amount to statutory rape as per section 375 of the Indian Penal Code.

The next key question is why is it that so much importance is given to the word consent? It is said that without due consent, indulgence in any sexual activity is termed as sexual violence. Always remember that no one has the right to infringe your personal space without your permission. Just like every right comes with a corresponding duty, you must respect the personal space of others. If on the other hand, you feel that you have been infringed in any manner, the best way to act is to approach the police, a parent (in case of minors), teacher or any other safe adult.

It is said that prevention is better than cure. There are certain steps that can be taken to make sure that our community becomes safer:

  • Learn about, practise and promote consent.
  • Respect other people’s sexual orientation and gender identity.
  • Join or start a violence prevention program at your school/community/ organization to help raise awareness.

The legal definition of consent is based on the Roman Law maxim ‘volenti non fit injuria’ which typically means that when a person has given his\her consent to suffer the harm or the risk committed by others, then he cannot complain for any injury that flows therefrom.

We can now understand why a doer is protected from criminal liability when he causes or takes the risk of injury with or without the consent of the sufferer as he acted in good faith and for the benefit of the person harmed. But in case of serious bodily injuries, criminal law does not recognise consent as a defence. For example, a player consented for a certain degree of injuries in a football match but if s/he received more than that in the normal conduct of the game, then it is unlawful.

Like all other legal concepts, consent is a difficult pill to swallow hence must always be treated with care and caution. Any type of consent given or sought, must be always properly recorded to save oneself from future objections or litigation.

 

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