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. It is now established in law in virtually all jurisdictions that consent to sex can be withdrawn at any time.
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 Using this standard consent is clearly withdrawn when one participant makes a clear statement or gesture (such as forcefully pulling away) which indicates consent has been withdrawn. Continuing to engage in sexual activity after consent has been withdrawn could constitute sexual assault. This level of consent was characterised in the western world through advertising campaigns revolving around the phrase Which part of no don't you understand?.
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.
No means no is increasingly being replaced in Western nations by affirmative and enthusiastic consent, which are better characterised as yes means yes.
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.
In an affirmative consent jurisdiction consent to sex can be withdrawn by a woman at any time without notice.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. Men who have sex with women in affirmative consent jurisdictions are opening themselves up to the risk of future prosecution. It should also be considered that most jurisdictions have no statute of limitations on criminal matters, meaning a man may be expected to show a woman consented to sex decades after the event.
Enthusiastic consent is similar to affirmative consent but goes beyond merely affirming consent. Now it has to be enthusiastically given.
New York state is considering introducing laws that would make it a crime to be less than fully truthful with sex partners. So a man lying about his social status or job would find himself charged as a result of having sex with a woman without consent.
New South Wales
The New South Wales (NSW) Law society recommended only minor changes to the definition of consent and considered an affirmative consent definition undesirable. On the 16th of May 2021 The NSW Greens Party stated in parliament their intention to introduce enthusiastic consent in NSW.
Sweden has an offence known as negligent rape in which the accused can be convicted because they did not properly establish consent even though all parties admit they did not intend to rape. This appears to be genuine use of affirmative consent in law.
The key points of this article are:
- Men should seriously consider the ramification of sex with women in affirmative or enthusiastic consent jurisdictions
- Affirmative or enthusiastic consent shifts the onus of proof to the accused
- Affirmative and enthusiastic consent laws and rules are always applied in a gendered manner
- There is no statute of limitations on criminal offences in many jurisdictions
A man could have sex with a woman and have her accuse him of rape 30 years later only to find that he has to prove she enthusiastically consented to the sex to clear his name. It's nearly impossible to prove this at the time, but would likely be impossible decades later.
- Dear Prudence
- Penn State Retroactively Redefined Consent after Accused Student Won A New Hearing Lawsuit
- Man charged after kissing woman live on TV
- Consent, it's a piece of cake
- 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
- Enthusiastic consent
- University of Queensland Law Journal
- Queensland Legal Aid Handbook
- NSW consent laws to be reviewed
- In Win for Due Process, American Bar Association Voted Against Affirmative Consent
- NSW, Australia
- Tasmania, Australia