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The Forum > Article Comments > What is ‘sexual consent’? > Comments

What is ‘sexual consent’? : Comments

By Jay Thompson, published 8/1/2008

Identifying what 'sexual consent' entails will help us determine if an individual genuinely agreed to participate.

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The analysis of consent has been well developed in developmental psychology and political psychoanalysis for so many years.

Young children (preoperational stage) use an intuitive rather than logical approach symbols forms. Their concept of knowledge is largely egocentric and imaginative, confusing fantasy with reality (e.g., assigning emotional states to objects).

At the older, (operational level), children use a more logical approach to symbolic presentations and decenter their notion of consciousness. At this stage they are capable of what is described as "simple consent" where particular acts, but not consequences, can be given. An age-based method would suggest that in the Maningrida and Arunkun where at this stage. Simple consent really is at the level of "I do/don't want an ice cream".

At the level of young adults, formal operations are possible. Only at this stage of thinking can a person think abstractly, reason logically and deductively. They are capable at this point to understand values, moral ambiguities and so forth. If one is looking for a defining point where sexual consent is possible, then this is it.
It is this point that "informed consent" can be reached, where a person is capable of adult reasoning, is in control of their senses, and is able to calculate the outcomes of their decision.

Contrary to the author's claim, consent is not contingent on power relations between partners - that is a political issue and should be treated as such (e.g., to counter "Hobson's Choice" type arguments of "free choice"). The only point where power does play a role is in the psycho-political level where consent is expressed, but not internally given (due to fear, peer pressure etc). In that regard, power does play a role; but it is not a contingent role.

Rather contingency is a matter of cognitive development. No person without the ability to engage is consent is capable of doing so regardless of the power accrued, and no person with that ability should deny themselves that responsibility.
Posted by Lev, Tuesday, 8 January 2008 9:15:38 AM
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Having sex with someone below the age of consent is not legal, and the boys and men involved in having sex with an 11 year old boy and a 10 year old girl should certainly go for that, and be punished with the full weight of the law

Whether it was rape is another matter.

Calling it gynocide is ludicrous.

It may not be too far away when all sex acts have to be videotaped and documents signed by the woman before sex occurs.

“The survey found that four in ten of the survey's rape victims, and one in three victims of attempted rape, chose to have intercourse with their so-called attacker again”

This was the case some years ago in a US university, where alcohol was a major factor in the so called rapes, and a similar situation could also occur in this country, where the greatest rates of binge drinking amongst teenagers in Australia is now occurring amongst teenage girls. If they had sex when they were drunk, then they also could claim afterwards that they had been rapped.

So having all sex acts videotaped and the tapes kept under lock and key with a layer may not be that ludicrous, but simply taking precautions, similar to having safe sex with contraceptives.
Posted by HRS, Tuesday, 8 January 2008 9:38:04 AM
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In my own research I have spoken to young people (16 years and over, thus the legal age of consent) about their experiences of pressured and unwanted sex. Unfortunately, what I have found is that young women and men’s experiences of negotiating sex rarely reflect what is expected under the legal definition of sexual consent. In Victoria consent is defined as ‘free agreement’ (meaning that a person must not for example be under duress, be asleep or unconscious, or under the influence of drugs or alcohol). Moreover, a person does not have to have said ‘no’ or physically resisted in order to show that they are not consenting to sex. Rather, the law in Victoria has been reformed such that consent must have been actively given. Yet these aspects of the legal definition of ‘sexual consent’ are less commonly known by many young people. In my research, many young women in particular experienced pressure to have sex from a boyfriend. For some young women this unwanted sex was their first sexual experience. Yet many of these young women did not even realise that what had happened was sexual assault or that they were entitled to justice under the law. This reflects other research which has shown that much sexual assault goes unreported. Also concerning, is that some of the young men I spoke to were not aware of the active requirement of consent. These young men were of the view that a young women being quiet and unresponsive may just mean that she was shy, and it did not occur to them that it may be an indication of non-consent to what was happening. It is not just the law that we must focus upon when we consider the issue of sexual consent. Crucially, we must also inform young people about the law and engage them in discussions about what consent means in their everyday encounters.
Posted by apowell, Tuesday, 8 January 2008 6:36:32 PM
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Children under a specified chronological age are deemed not able to give consent to sex, whether they say yes or no, or even advance the offer. (This legal definition of consent may coincide roughly with a stage of cognitive development, but it is best not to think in terms of cognitive development because individuals develop at different rates, and some intellectual impaired may never reach a stage of consistent logical capacity. So it is much neater to think in terms of chronological age).

But beyond the legal age, how can anyone reckon the power relationships? If a person says yes - because the relationship depends on it, or because rewards are great, or because their inhibitions have been lowered by drink or drugs taken voluntarily, how can this be defined as rape? If they have been tricked into intoxication, psychologically threatened, scared witless of the consequences of saying no, tied up, beaten, then that is of course rape. The grey areas inbetween the clear instances are what need to be settled in ways that more clearly define appropriate and inappropriate behaviour.

A girl I loved once said to me "No" and I stopped. Some 50 years later I wonder whether she was hoping to be overruled, and, if I had been more insistent over her mild objection, we would probably have gone on to marriage. I would dearly like to be able to plumb her mind and wonder if she has regrets in having underestimated my timidity. I am not joking or trivialising these matters, just reflecting on the complexities and nuances of intimate relationships.
Posted by Fencepost, Tuesday, 8 January 2008 6:38:24 PM
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A simple phrase like "Give me a call sometime" has I beleive around 124 different meanings. Depending on context in which it is used, verbal emphasis and non verbal body language.

In actual fact verbal language comprises around

"Albert Mehrabian as quoted also by Pease found that the total impact of a message is about 7 percent verbal (words only) and 38 percent vocal (including tone of voice, inflection, and other sounds) and 55 percent non-verbal. One study also done in the United States showed that 93 percent of a message was transmitted by the speaker’s tone of voice and facial expressions. Only 7 percent of the person’s attitude was conveyed by words. Apparently, we express our emotions and attitudes more non-verbally than verbally (Adelman and Levine:1993)."

So we already run into communication problems, especially in law which relies heavily on the spoken/written word. Plus some people are assertive and others are submissive.

The second issue is that we are led to believe that girls mature much earlier than boys. Not only physically, but socially and psychologically as well.

So here is a conundrum, girls mature at least two years earlier than boys, yet the law treats them as if they are unable to give valid consent.
Posted by JamesH, Tuesday, 8 January 2008 10:04:34 PM
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I disagree with you on both the chronological age/cognitive capacity issue. You appear to confusing what 'is' the case with what 'ought' to be the case in a legal sense. Just because there is a particular law that currently exists does not imply that law is the right one for all people, for all time and has been the same in the past and will be the same in the future.

Whilst it may be 'neater' (and certainly more efficient) for a legal system to grant rights of informed consent at a particular age across all individuals, that is not necessarily the most morally correct solution. As you have correctly pointed out, individuals vary in their physical and cognitive development - and some never even reach the capacity of engaging in formal operations.

The best system, in terms of justice, would accord the rights and responsibility to "adults with adult reasoning" according to their cognitive ability and would vary according to the individual in question. Whilst the difficulty of testing this is far from beyond the capacity of psychologists (indeed, they have been doing it for several decades now), it would also require significant legal safeguards against corruption, it would be expensive and there is the danger of "false positives". Whether those costs are sufficiently minimal to according appropriate rights and responsibilities to young adults is, ultimately, something that they will decide.
Posted by Lev, Tuesday, 8 January 2008 10:19:46 PM
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