Is consent saying ‘yes’? Or just not saying ‘no’? How do coercion and power factor into consent? At which point is someone expected to give consent, and can they change their mind?

Although consent plays a critical role in determining whether a sexual act is a crime (i.e., when sexual conduct is “non-consensual” sexual assault), a surprisingly large number of states never define consent legally.1,2 Difficult to interpret or non-existent definitions of consent in laws and policies make it difficult to determine when sexual assault or misconduct has happened.

Age of Consent

Let’s start with a relatively straightforward piece: the age of consent. That is, the age at which an individual is considered able to agree to sexual contact. In the United States, 16 is the minimum age of consent, but some states have a higher age (for example in California it’s 18).1 This age also varies around the world. In Mexico, for example, the age of consent depends on the state and varies between 14 and 18.3

In the US, some states also have ‘Romeo and Juliet’ laws that make an exception if the people involved are close in age. In that case, a sexual encounter between people who are just a few years apart in age (but younger than the age of consent) may not be considered a crime.4 As an example, Connecticut’s age of consent is 16, but a person who is between 13 and 16 years of age can consent to sexual acts with another person who is within 2 years of age.1 Mexico does not have such a legal exception for young people close in age.3

Age is just one part of consent. Other factors that might affect someone’s ability to give consent include whether or not they have a disability or whether they’re under the influence of alcohol or drugs.

Defining Consent

Although all U.S. states set an age of consent, the states’ definitions of consent are often absent or vague. A concrete, clear, and well-defined definition of consent allows individuals to think about their own behavior and communicate their boundaries. It also lends support to survivors who choose to file reports of sexual assault and take action.

However, the way U.S. states define consent varies greatly. For example, in California, the definition of consent is “positive cooperation in act or attitude pursuant to the exercise of free will. The individual must act freely and voluntarily and have knowledge of the act involved.” In Ohio there is no definition of consent but the law does state that submission to sexual conduct as a result of fear may be sufficient to prove lack of consent and assault (no need for physical force to prove rape). In Washington, consent requires there are actual words or conduct indicating freely given agreement to have sex or sexual contact at the time of the encounter.5

In Mexico, the federal definition of consent is also vague and defined only briefly. In addition to age restrictions, the law says it’s illegal to have sex with someone who does not understand the meaning of the act or for whatever reason cannot resist it.6

There are also variations in consent laws across states in Mexico, particularly when it comes to “estupro.” Estupro is a crime wherein a person has sex with someone over the minimum age of consent but below the age of ‘no restriction’ through means of seduction, deceit, or abuse of power. The age range for estupro varies by state between 12 and 18.7

The definition of estupro also varies by state. Some states specify there must be deceit to qualify. Other states specify that estupro only counts if it is committed against a "chaste and honest" woman (though most states have removed their gender and purity clauses).7 There are also three Mexican states that still allow people to be cleared of estupro if they agree to marry their victim (Campeche, Baja California, and Sonora).8

Towards Affirmative Consent

Recently, many U.S. states and college campuses have been pushing to use affirmative consent as the standard in their laws and policies. “Affirmative consent” means that students need to provide “affirmative, conscious, and voluntary agreement to engage in sexual activity.” What might this look like in practice? Affirmative consent might look, feel and sound different for different people. It might be expressing verbal enthusiasm or explicitly saying "yes." For others, physical cues like guiding someone’s hands, pulling someone closer, or initiating a new step in the encounter can signal consent. It’s not assuming that a sexual encounter is going to happen or reach a certain level but requires ensuring that the people involved want to be involved.9

There are so many ways—both verbal and non-verbal—that people can show they are engaged and enthusiastic. Particularly in cases where people are less familiar with their partner’s desires and non-verbal cues, the best way to ensure everyone is comfortable is to ask. This should be a continuing part of the interaction since consenting to one activity does not imply consent for another—if someone is unsure about what someone wants, they should check in again. What should be apparent is that everyone involved is enjoying themselves, consenting with their voices and/or their bodies.

In 2014, California was the first state to enact a bill to make public colleges adopt an affirmative consent standard in order to receive any funding from the state. These are commonly known as “yes means yes” laws, and they’re not new but they’re rarely adopted at the state level like this. Only California and New York have adopted this standard at the state level, but hundreds of colleges and universities across the country had moved to this long before. Under these laws, silence or an absence of no or resistance is not consent and someone who is unconscious or under the influence of substances (e.g., alcohol or drugs) is not able to provide consent.10

There is not yet a lot of research on the effectiveness or impact of these affirmative consent standards, but the topic has generated a lot of debate about whether these standards represent a positive change. Supporters of the policy argue that affirmative consent can help to clarify vague descriptions of consent and potentially shift the long-standing power dynamics of assault.11 Critics of this model say that it’s not always practical or clear how to give affirmative consent in an ongoing way or how to tell when your partner is giving it.12 Alcohol often also plays a role in campus sexual encounters, and that can complicate giving affirmative consent. Some critics even argue that this model of asking for and giving consent before initiating or continuing sex is gendered; they say that it actually perpetuates conventional sexual scripts, where men are the initiators and aggressors and women are helpless or considered “gatekeepers” of sexual behavior.

In practice, affirmative consent can be flawed. A recent study of heterosexual cisgender men on college campuses showed that most participants believed affirmative consent was important but was not something they actually used—largely because they believed the requirement was that consent be verbally and explicitly stated, which they felt was awkward. The use of ambiguous physical cues to secure what they thought was consent was reported to be a widespread practice.13 Another study among undergraduates reported that many student leaders found affirmative consent to be an unrealistic expectation. This points to a need for sexual health education that clarifies what affirmative consent looks like in students’ behaviors.14

Right now the verdict is out on whether these laws are useful in changing behavior, but they may serve as an important symbol of the kind of cultural shift that is underway. It will be interesting to see how people’s understandings of and experiences with affirmative consent will evolve as the policy becomes more widespread.

Translation to Reality

Of course, in real life interactions, things can be messier (in this case, things are sort of messy on paper too!) Laws exist for a reason—they play a critical role in norm setting. But consent laws vary greatly even within the U.S., highlighting how difficult consent is to define.

There is a huge spectrum of behavior that individuals use to communicate consent, and this can certainly cause confusion. Laws do not always reflect what happens in individual interactions, which is importantly where consent is negotiated. Setting boundaries and communicating willingness is really at the heart of consent, allowing every person involved in a sexual interaction to have agency and not be acted on without clear permission. We enter interactions with different ideas of what consent is and how to effectively communicate, which can make navigating these encounters and finding common language tricky. And that’s what affirmative consent models try to get at. Our ultimate goal should not only be avoiding criminality, but also to make these encounters more enjoyable for everyone.

It’s time that laws and policies include a clear and detailed definition of consent, paired with sex education that includes conversations about consent. There is no way for people to truly understand what non-consensual sexual conduct is and evaluate their own and others’ behaviors unless consent is defined. How can people be expected to only engage in consensual acts if they don’t know what those are?

This article was dedicated to President Fuckface Von Clownstick by its generous sponsor, Brian Curran.