Sex without coercion: What the principle of consent really means
At first glance, the idea of consent in sex seems very simple.: partners have sex voluntarily and voluntarily. But the loud incidents of the past few months - the campaign #YANeFearing the similar American flashmob #NotOkay, the situation in Moscow's 57th school, the sentence imposed on former MADI students who raped a girl in the club - show that in our society there is still no single and well-established ideas of what consent is. The principle itself is surrounded by many nuances and prejudices - there are many "gray areas" that began to be discussed not long ago. We have understood the concept of consent and how it changes over time.
What is consent from a legal point of view?
The concept of consent is not spelled out in the legislation of all countries, but the situation is changing. For example, in the UK, the concept of consent was legislated in 2003. In practice, it consists of several elements: first, a person who has decided to have sex has reached a certain age and understands the consequences of his actions. Secondly, he makes his choice freely, and not under the pressure of a partner (including the one on which he depends - materially, legally or in some other way). Thirdly, it is not under the influence of alcohol or drugs.
There is still much controversy in Russian society about what is considered consent. This is largely due to the law: the term "consent" is not in the Criminal Code, it is not described in the rules and regulations of law enforcement practice. Russian legislation on sexual violence is, in principle, far from perfect. For example, rape recognizes only male violence against a woman (violence against men is not taken into account), and for what happened to the victim to be recognized as rape, she must resist (although in practice the victim of violence often does not resist because she fears for her life or health). The article itself of the Criminal Code "Rape" implies only "traditional" penetration, not covering, for example, oral sex under duress. Violent homosexual intercourse falls under another article - "Violent acts of a sexual nature."
The law mentions the helpless state of the victim or the victim as an aggravating circumstance, but, as the Russian criminologist, who specializes in crimes against sexual integrity and sexual freedom of the person, human rights activist Margret Sattarueyte points out, it’s up to the discretion of the court that this can be and the state of coma, and fainting, and sleep, and intoxication.
Age of sexual consent should help adolescents feel safe, act in their comfort zone and protect them from abuse by adults.
The only thing that is precisely stated in the Criminal Code is the age of sexual consent, in which a person can consciously (and therefore legally) agree to have sex. The age limit is needed, first of all, in order to protect minors from psychological or physical trauma that they can have sex with an adult. Of course, everything is rather arbitrary - adolescents develop in different ways and reach maturity at different times. But the age of sexual consent should help them feel safe, act in their comfort zone and protect them from abuse by adults. In a culture that supports reverence for adults, it is often difficult for minors to realize that they are under pressure: they may feel insecure and because of this they neglect their own interests - for example, they are afraid to insist on contraception.
In Russia, in heterosexual and homosexual relations, the age of consent is sixteen years. At the same time, there is a reservation in the law: a person who first entered into a relationship with a minor or a minor is exempt from punishment if the couple marries: according to the law, it is considered that in this case "the person and the crime he committed is no longer socially dangerous."
In different countries, the law has a different age of consent: for example, in the United Kingdom, the Netherlands, Norway, Belgium and Spain, it is 16 years; in most states of the USA - 16-17 years old; in France, 15 years; in Germany, Austria, Hungary, Italy and Portugal - 14 years, and in Turkey - 18 years. In some countries, the difference in age between partners is also important, if at least one of them is a minor - this is done in order not to punish people close in age (most often adolescents) who voluntarily have sex, but at the same time protect juveniles from adults. This model is valid, for example, in Canada: the age of consent is 16 years old, but teenagers can have sex as early as 12 years old - provided that the difference in age between partners is no more than two years. The age of consent rises to 18 years, if one of the partners has power over the other - this is necessary to protect adolescents from abuse by adults. According to Russian law, if the age difference between a minor and his partner is less than four years, then the defendant is not deprived of his liberty.
What does ethical consensus mean?
Not everything related to sexual consent is regulated by law. The concept of sexual consent implies not only that two adult persons enter into a relationship: it is very important that they act consciously and voluntarily. For example, a sleeping person or a person in a state of severe alcohol or drug intoxication is simply not able to give informed consent. The same is partly true for sexual relations with people with mental disorders, although the situation is more complicated here: the limits of a person’s freedom and how independently they are able to make decisions differ in each particular case - and often in such situations prohibitions limit a person’s right to sexuality. Of course, not always sex while intoxicated will be violent, but both partners must be able to soberly evaluate their actions. Margret Satterwaite notes that in Russia in situations where both people are in a state of alcoholic intoxication, the court previously considered this to be an undoubtedly aggravating circumstance for the rapist - but now everything depends on the practice and views of the particular judge.
In addition, full agreement is possible only if the partners are equal. If one of them depends on the other (as a student from a teacher, a subordinate from a leader, a patient from a nurse or a doctor), it is very difficult to understand whether he decided to have sex voluntarily or under pressure from a more influential partner. Such relationships will not always be traumatic, but even if it seems to both of them that they have equal rights, one of the partners is still in a more vulnerable position. In some American universities, such as Harvard and Yale, relations between students and teachers are officially prohibited. Harvard also prohibits relations between graduate students and undergraduate students when older ones can influence the studies of younger students — for example, they evaluate or supervise their work.
In the Russian Criminal Code there is an article “Forcing to actions of a sexual nature”: it provides for punishment for forcing a victim to have sex, when it is exposed to threats or blackmail or use its dependent position. This article may also include relations between a teacher and a student who insists on sex in exchange for a mark, and cases where the employer threatens the subject with dismissal if she does not enter into contact with him. Naturally, voluntary relations are not regulated by the law, but both people entering into them should be aware that the distribution of forces and influence in a couple will be unequal. And a person who has authority over a partner should understand that he is subject to a huge responsibility - and always evaluate his actions in terms of the desires and interests of another.
Consent is also of great importance in relationships and marriage, where, too, alas, there is a place for violence. Both society and lawmakers pay attention to such situations by no means always: there is a stereotype that rapists are always strangers attacking a person on the street, but very often the victims face violence from friends and partners, current or former. Sexual abuse in a relationship is all the same coercion to sexual acts with the help of threats, force or blackmail. Russian law on violence does not distinguish between married and unmarried women, but violence in marriage and relationships is much less often spoken - largely due to the stereotypical “marital duty” that a woman is obliged to perform regardless of her own will. Violence against men in marriage remains completely out of sight of society.
In many countries, measures against violence in marriage were introduced: in the UK, it was criminalized in 1991, and in the United States in 1993. However, in 49 countries there are still no relevant laws. For example, in India, where women are forty times more likely to face violence from their relatives than from strangers, sex in marriage (if the wife is over fifteen), in principle, cannot be considered rape - this is expressly stated in the law.
How is the idea of consent implemented in practice?
In conversations about sexual violence in the world, the phrase “Yes means yes” instead of “No means no” is increasingly used: in California this interpretation, for example, was legislatively called for to be introduced in universities. It would seem that between them there is almost no difference - but it is not. "No means no" means that silence can be perceived as a sign of consent; that is, if the victim did not say “no” or refused, but did it “not directly”, she allegedly automatically agrees to everything that is done to her. A vivid example is the situation with a student MADI last year: at a party in a club, a girl was raped in a toilet, and then they posted a video of what happened on the Internet. The girl was faced with violent Internet harassment: she was accused of being unable to resist and “distinctly” denying rapists because she was intoxicated. The wording “No means no” partly feeds on the culture of violence: in it the responsibility for what happened is always on the victim who allegedly did not try to prevent the crime.
Sometimes this literal interpretation of consent does not punish the abuser: for example, a former Stanford student who raped a girl who was unconscious due to alcohol could not be charged with rape and sentenced to only six months in prison. According to state law, the victim must resist rape — but the girl was unconscious and could not say no.
The installation “Yes means yes” (also imperfect, but clarifying what the first principle omits) emphasizes that if the victim does not refuse directly or does not resist, this does not mean that she agrees with what is happening. This model is called "affirmative consent", that is, clear and unequivocal agreement: if a person clearly, directly and without coercion did not make it clear that he wants sex, any actions can be considered violent. In addition, the consent cannot be "eternal", it can be canceled at any time: one of the partners can change their mind in the process, understand that they do not want sex, or, for example, give up certain actions - and the second should respect its boundaries.
Consent obtained as a result of persuasion, manipulation, and psychological pressure cannot be considered as consent
In practice, such measures often cause bewilderment: they draw a clear boundary where there used to be a “gray zone”. Does this mean that, having sex and moving on to the “next level”, we need to check with a partner each time if he agrees - won't this spontaneity kill in a relationship? Should non-verbal signals be taken into account (and where, in this case, is the boundary?) - or can only the answer “yes” to a direct question be considered as consent?
Opponents of the installation “Yes means yes” say that in disputable situations one of the participants in the events will automatically be considered guilty - simply based on the words of the other party. There is a widespread belief that a woman can agree to have sex, and later “change her mind” and accuse her partner of rape. This is a myth that does not have a valid reason: according to statistics, false accusations of rape are rare. Representatives of the British police talk about other situations: when the victims did not immediately realize that they were under pressure and they were actually inclined to have sex - for example, if they were “actively courted” (in Russian there is a capacious word for this).
In fact, "Yes means yes" does not blur the boundaries - this installation simply removes from the "gray zone" manifestations of a culture of violence, teaches you to listen to your partner and respect his wishes (and the lack of desire as well). Consent obtained as a result of persuasion, manipulation, and psychological pressure ("Well, what do you break!", "Come on, what are you"), can not be considered as consent. A person who really wants sex will make it clear - not always a simple “yes”, but always with enthusiasm. The rules and regulations concerning consent are changing before our eyes - not surprising, given that marital violence in the United States recognized it as a crime only 25 years ago. The key to everything is an open and honest conversation, without which neither sex nor relations are possible on their own. And you need to focus here not only on your feelings, but also on what your partner feels and thinks.
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