Let’s talk about Consent
The definition of consent is ‘if he or she agrees by choice and has the freedom and capacity to make that choice.’ To consent, a person must be able to make a deliberate decision, free from manipulation, coercion, exploitation or the threat of violence.
Consent is a complex topic, and there are both gender and generational differences in the way that sexual consent is perceived. A YouGov poll in 2018 reported that a third of men thought that if a woman has flirted on a date it generally wouldn’t be rape, even if she hasn’t consented to sex (21% of women believed this too), and, almost a quarter (24%) didn’t think that, in most cases, sex without consent in long-term relationships would be rape (despite laws against rape in marriage being in place since 1991).
The same report found that more than a third (35%) of over 65s when asked, thought that in most cases it isn’t rape to have non-consenting sex with your wife or partner, compared to just 16% of 18-24s. Whilst 42% of over 65s generally thought that in most cases if a woman changes her mind halfway through but the sex continues, it isn’t rape compared with just 22% of the 25-49s. These findings could have significant implications when considering the verdicts made by a jury.
Consent can only be given if both parties have the capacity to consent and have reached a mutually agreed decision to have sex. Capacity can be significantly affected if one or both parties are under the influence of drink or drugs. Whilst having had a drink doesn’t necessarily mean that consent can’t be given, the relationship between alcohol and consent is complex, and it does significantly increase the risk of a subsequent sexual assault or rape charge if either one or both parties were intoxicated. If there is any doubt that a person has the capacity to consent the best course of action is to leave well alone. Consent should never just be assumed because of the absence of the word ‘no’ but rather the seeking and receiving of an enthusiastic ‘yes.’
Other factors influencing the ability to consent are an imbalance of power (or someone with a position of power) or a significant age difference. The Sexual Offences Act states that the age of consent is 16 for both heterosexual and same sex couples. That said, the CPS states that ‘children of the same or similar age are highly unlikely to be prosecuted for engaging in sexual activity, where the activity is mutually agreed and there is no abuse or exploitation’. Anyone under the age of 13 is not legally able to give consent to sexual activity and a perpetrator could be charged with statutory rape, even if consent could be proved.
The law is also clear that it is the responsibility of the person seeking consent who has the legal duty to ensure that the other person agrees by choice and has the freedom and capacity to make that choice. The seeker of consent must also seek continuing consent rather than treating it as a one-off. It can be withdrawn at any time and it should never be assumed just because it was given in the past.
Although it is important to consider consent within a sexual context, it is equally important to consider this concept in the wider perspective of students learning about healthy relationships. Ideally, the concept of consent should be embedded within primary school, starting in early years where young children are included in making decisions about their personal space and taught about appropriate and inappropriate touch. As parents and educators, we often instil in children that adults ‘always know best,’ and ‘you must always do what an adult tells you to do,’ If, however, we are going to empower children to ‘safeguard’ themselves, then we need to ensure that they can recognise situations where they should say ‘no,’ teach them how to say ‘no’ and give them opportunities to practice these skills. This can be difficult for any child, particularly if the adult is being manipulative, coercive and/or threatening.
For schools, teaching about consent plays a vital role in your safeguarding requirements and fits within the social, moral, spiritual and cultural obligations expected and measured by Ofsted.
Although we can teach students about the law and the difference between right and wrong, consent is not something that we academically understand; it is something we do. It is nuanced and requires skills, strategies and a strong belief in our own self-worth and respect for others. Positive consent skills are about being able to communicate clearly with others about boundaries on touch, teasing, and play, and staying aware and respectful of the boundaries of others. Consent is about recognising verbal and non-verbal communication and learning about what manipulation and coercion look like, whilst emphasising that the victim is never to blame.
Education settings have a big part to play by providing an environment that is itself consensual where conversations about consent are part of everyday interactions with students of all ages and are included and discussed in a range of contexts and across the curriculum for each year group. Students should have the opportunity to consistently practice the skills and not just be taught the concept without having the opportunities to put these skills into practice.
Further reading:
PSHE Association Lesson Plans for Key Stage 3 and 4 on Consent
Give and Get Consent - Rape Crisis - Lesson plans for key stages 3 and 4