It’s easy to make the distinction between sex versus sexual assault. Sex requires consent. Without consent, it’s sexual assault.
Although this rule of thumb is so simple, people continue to violate its boundaries. To help educate the public on consent, many No Means No campaigns have been swapped out for Yes Means Yes policies.
No Means No is designed to protect people from sexual assault, but can create ambiguities. It is built around the idea that a sexual act is unwanted, if an individual says no to it.
But what if somebody doesn’t say anything? What if they said yes before and then no?
California is the first state in the nation to pass a Yes Means Yes law. This piece of legislation requires that each person get clear affirmative consent before engaging in a sexual activity.
Under Yes Means Yes, affirmation for a sexual act must be made consciously, unambiguously and voluntarily. It can be made verbally or communicated through actions.
Silence does not qualify as consent. Not saying no does not mean consent. Also, if a person is mentally incapacitated – whether from drinking, drugs or something else – it is not considered consent.
Another crucial point in understanding consent is that it is an ongoing process. Consent must be made throughout a sexual interaction. Just because an individual agreed to one type of sexual act does not mean that they consent to another. Similarly, if an individual has agreed to a sexual act in the past or there is an existence of a relationship between the partners, that does not equal consent.
At any point during the sexual interaction, if one person says no, or changes their mind after saying yes, consent has not been granted. Force, threats or other types of coercion used to control another person during a sexual encounter also violates consent.
Jessica Pride is a lawyer dedicated to spreading the word about consent and other policies that help protect all of us against assault. She has been compassionately and successfully representing victims of sexual assault for years. Please reach out to her today if you or a loved one have endured sexual assault and want to learn more about your rights.