Consent
Consent laws vary by jurisdiction and over time. Currently, there is move away from basing consent laws on a clear refusal (no means no) and toward affirmative consent or enthusiastic consent.
No means no
This has been the prevailing form of consent in many societies during the modern era. Using this standard consent is clearly withdrawn when one participant makes a clear statement or gesture (such as forcefully pulling away) which indicates consent has been withdrawn. Continuing to engage in sexual activity after consent has been withdrawn could constitute sexual assault. Notably Western courts grant a person very little time in which to cease sexual activity following withdrawal of consent. Maouloud Baby was convicted of rape in the United States after a woman alleged that he continued sexual intercourse with her for five seconds after she withdrew consent. Maouloud Baby was a minor at the time. Kevin Ibbs was convicted of rape in Australia after a woman alleged that he continued sexual intercourse with her for around 30 seconds after she withdrew consent.
Affirmative consent
Consent laws around the world are moving towards affirmative consent in which the onus of proof is on the accused. While affirmative consent regulations and laws are written in a gender-neutral manner they are always applied in a gendered manner where it is presumed that the man continues to provide consent and that it is only the consent of the woman that needs to be considered. The remainder of this section will be phrased in the manner that regulations and laws are applied.
In an affirmative consent jurisdiction, a woman engaging in sex with a man need not notify the man when she withdraws consent. Rather it is presumed that the man needs to take note of her affirmation of consent (verbally or otherwise) and cease sexual activity if he does not observe it. This shifts the onus of proof to a man accused of sexual assault as it is now up to the man to establish that the woman did not withdraw consent.
Consent to sex can be withdrawn at any time. In an affirmative consent jurisdiction consent to sex can be withdrawn by a woman at any time without notice. A man seeking to defend himself against an allegation of sexual assault in an affirmative consent jurisdiction would need to establish to the court that the woman had consented to sex continuously. It is unrealistic to presume that a man could offer sufficient evidence to establish continuous consent. As such men who have sex with women in affirmative consent jurisdictions are opening themselves up to the risk of future prosecution.
Combined with the onus of proof applied in an affirmative consent jurisdiction it is clear that a man having sex with a woman is required to know that she is affirming consent to sex continuously or cease sexual activity. This is an impossible expectation and as a result men having sex with women in an affirmative consent jurisdiction are opening themselves up to prosecution at any future time.
In an affirmative consent or enthusiastic consent jurisdiction consent to sex can be withdrawn by a woman without notice.
This means that the onus of proof shifts with the man left to prove that the women did not withdraw consent to sex - an impossible task.
The entire discussion is about women consenting. That men might not choose to consent is generally ignored.
- Consent can be withdrawn at any time
- Tasmania is the only jurisdiction in which there is no consent in the absence of verbal or physical communication as to free agreement
- Consent-as-a-felt-sense
- Enthusiastic consent
Enthusiastic consent is really just a special case of affirmative consent.
Consent can be withdrawn at any time. In an affirmative consent jurisdiction, the only time the man knows the woman is consenting is when she affirmatively consents. If she stops affirmatively consenting, even for a short time, then he does not know if she is continuing to consent. She may have withdrawn consent in her own mind. There is no requirement to notify him that she has with withdrawn consent.
If she later claims he sexually assaulted her the onus will be on him to prove she did not withdraw consent in her own mind. How could he ever do that?
Case law has already convicted men of sexual assault for continuing sex after withdrawal of consent for 30 seconds (Western Australia) or 5-10 seconds (USA).
Men should not have sex with women in jurisdictions enforcing enthusiastic (or affirmative) consent. It's simply too dangerous.