Definitions Of Implied And Affirmative Consent

Before engaging in any sexual activity, it is always important that you and your partner have a clear and voluntary agreement that is called consent. Consent can be demonstrated in a variety of ways – either, by words, or by actions alone, The person wanting to go ahead with something is always responsible for checking that they have the other person’s consent. However, even after any sexual activity begins, consent can still be withdrawn.

Communication is the key here – speaking about sex beforehand is the best option, but sometimes consent is implied from behaviors or overt actions. Also, one cannot presume that having one’s consent to engage in sex once, it’s a green card for the future as well. Therefore you should always ask for consent. After all, one doesn’t have to be an expert to understand consent.

Below you can find two of the most common types of consents.

Implied and Affirmative Consent

Source: Unsplash

IMPLIED CONSENT

There are some people who don’t give verbal confirmations before having sex. They tell the other partner that they are interested in having sex with them by clearly showing their mutual engagement through their body language and behaviors. So, implied consent is a non-verbal type of consent but one that can be open to misinterpretation and ambiguity. The one who initiates the sexual activity must make sure to always get a clear consent. Lawtons Solicitors writes that neither lack of physical rejection nor silence is implied consent.

Clear implied consent is when both parties are indicating a desire to continue having sex. Also, implied consent cannot be assumed by what a person is wearing, nor if you kissed someone who gave you consent to have sex in the past. So, every time one has sex and every change of the sexual activity is mandatory to be consented by both partners.

Implied and Affirmative Consent

Source: Unsplash

As consent is implied through overt actions, the situation and circumstances are also important. According to New York Implied Consent, if two people were in a familiar relationship before, the chances to have an implied consent are higher, because they knew each other before. Whereas Dr. Nicola Henry is a socio-legal scholar at RMIT who researches sexual assault and rape spoke for Hack about implied consent:

Consent cannot be inferred if the person does not say or do anything during the act. For instance, in the past there was a requirement that the complainant must actively say or indicate in some way ‘no’ but there has been a move towards what’s known as an “affirmative” or “communicative” model of consent.

 

AFFIRMATIVE CONSENT

Enthusiastic or affirmative consent is a part of every healthy relationship, no matter the context of the relationship. Affirmative consent is the idea that both partners should be clear, and unambiguous on their decision for sexual interaction. The State University of New York defines affirmative consent:

Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.

One should consider that if one doesn’t get consent in sexual activity and still this party doesn’t stop, it is considered as sexual assault or even rape.

Furthermore, the importance of affirmative consent is being discussed at college statuses and state legislatures around the US as well.  Also, there are written laws on consent around the world, stating that consent can be revoked at any time. Despite this fact, the law states that incapacitated individuals are not able to give consent.

Source: Shutterstock

When is a person incapable of giving consent?

When an individual is asleep, unconscious or unaware of the sexual activity occurring, that individual is incapacitated to give consent. This includes being under the influence of alcohol or other drugs that impair our judgment. Also, a person can be in a state of incapacitation because of a mental disability that impairs the ability to give consent. In many countries, a person is incapable to give consent when that person is under the legal age of consent, that is generally considered to be 16 to 18 years in US states, Legal Match reports.

For more, you can listen to this poem by Anna Binkovitz – “Asking For It”  about how the world would be if people communicated through clothing. Or another one in how a kiss is not a contract and does not imply that one can go further – ‘A Kiss is Not a Contract’.   

I believe that both of these videos give two helpful perspectives on how to better understand consent and quite summarize what we just talked above. Enjoy!

 

You might also be interested in: 

Make Sure You Have One Type Of These Consents When Having Sex