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| "Consent" when it comes to sex by Tansin A. Darcos (TDARCOS) 05/07/2012, 11:43pm PDT | ||||
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| There are a number of people who misunderstand what you have to have from someone (usually a woman) in order to fuck her and not be guilty of rape. In every place in North America - that is, every U.S. State and Canadian Province - the standard is the lowest level required, which is "consent." The law says you have to have consent to have sex with someone.
But what is consent? It represents the lowest level of either "approval" or "failure to disapprove." Consent simply means you had a reasonable belief that she would allow you to have sex with her. How do I know that is the standard? Basically we look at it by what is the conditions that one does not have consent. For example, you can't have sex with someone helpless or unconscious, sex with them is automatically rape. They have to be able (1) to understand you're going to do something sexual in nature to them ("appraising the nature of the individual's conduct"); (2) able to resist; and (3) able to communicate unwillingness. So it means that if they understand what you're going to do to them and they neither say no, nor try to stop you, that represents consent. Now, in some cases the first part is completely eliminated by saying that some people are by law presumed incapable of understanding that you're going to have sex with them, usually because they're too young. They have to be at least the minimum age allowed to have sex, or have reached the "age of consent." The phrase "age of consent" is a term used in legal circles to define a specific condition, but the phrase itself is not defined by law. It is a fixed standard which says that once someone turns this age they are presumed to understand the consequences of sex and can choose to have sex with others. In most places, the age of consent is 16. In 2004, Canada raised its age of consent, which was set back in the 1880s, at 14. Now the age of consent anywhere in Canada is 16. In the U.S., the age of consent varies by state. In Alabama, Alaska, Arkansas, Connecticut, District of Columbia, Georgia, Hawaii, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Hampshire, New Jersey, North Carolina, Ohio,Oklahoma, Rhode Island, South Carolina, South Dakota, Vermont, Washington and West Virginia, it's 16. It's 17 in Colorado, Illinois, Louisiana, Missouri, Nebraska, New Mexico, New York, Texas, and Wyoming. And it's 18 in Arizona, California, Delaware, Florida, Idaho, North Dakota, Oregon, Pennsylvania, Tennessee, Utah, Virginia, and Wisconsin. Even at that, most states grant exceptions, recognizing (now) that punishing two teenagers who have consensual sex where one of them is under the legal limit is not a good use of scarce judicial resources. For example, in Colorado, the age of consent is 17, but if you're no more than ten years older than them you can legally have sex with someone 15 or 16, and if you're no more than 4 years older, you can legally have sex with someone even younger than that, e.g. an 18-year-old boy could legally have consensual sex with his 14-year-old girlfriend. In my home state of Maryland, the age of consent is 16, but you are allowed to have consensual sex with someone younger than that if you're no more than 4 years older, e.g. a 15-year-old boy can legally have consensual sex with his 12-year-old girlfriend. But sometimes the exceptions simply reduce the level of a crime but does not make the sex legal. It is illegal to have sex with anyone under 18 in California, no exceptions. However, if you're no more than 3 years older than the person under age, the crime is reduced from a felony to a misdemeanor. This means that if two 17-year-olds in Santa Monica were discovered having sex, both of them can be prosecuted. "Consent" does not mean "permission." Consent can be implied, you do not have to get explicit approval; starting an obvious act which is sexual in nature which the person makes no response at all indicating they are not interested or don't want it implies consent. You meet some woman and you ask her to come home with you. She gets in your car and you drive home, the two of you go in your place. You lead her into the bedroom, ask her for her coat, you help her get her jewelry off and you undress her. She gets in your bed and you follow. The two of you neck passionately, fool around, then you get on top of her and have sex, then you finish and roll off, She takes a shower and leaves. She never once said a word. At what point did you have consent? At the moment you went to get inside her, and she neither made an effort to stop you nor told you not to. You did not have "permission," because she never told you to have sex with her; you had consent because she never at any time told you not to. And all the time you're inside her, moving, as long as she never tells you to stop, you still have consent. Personally, I never liked implied consent, at least as far as vaginal intercourse. Implied consent is the sort of thing that, unless it's a girlfriend or someone you've been seeing before, if she's unhappy about your performance or you misinterpret her, can lead to "he said-she said" rape complaints. Whenever I was about to have sex with someone for the first time, I always told her I was going to enter her and get inside her; but I did not wait for her to say that I had her okay. I'm sure she knew this since we were in bed naked, fooling around, and I've done everything else with her except sex. But I never went to the level of getting permission. Permission is the highest possible standard and is much stronger than mere consent. You get it in one of two ways. She asks you to do something to her or you ask her and she says "yes." If you're hot and heavy with a woman, and she says "Go ahead and fuck me," you can get inside her at any time; you do not have consent, you have more than that, you have permission. Or you ask her, "is it okay if I start fucking you," and she says yes, then, obviously, you got her permission. The idea of implied consent is very important in sex because a lot of things done as part of intimacy are in fact crimes if you don't have consent. You're in bed with some woman, you're fooling around with her, and you slide your hand up her thigh, then under her dress and into her panties. She's wet, and you stick a finger into her vagina, slide it in feeling for the bumpy area on the roof, and when you find it, you start stroking it by moving your finger in and out of her. You're fingerfucking her by stroking the G-Spot. This is going to be very pleasurable for her, and, since she made no effort at all to stop you, you have implied consent. If she tells you to stop she's withdrawing her consent and you have to stop. If you did not have consent, you've committed a crime. In Maryland it's "Sexual Contact 4" and can get you a year in jail and a $1000 fine unless she's underage, then it's much worse. ("Sexual contact" is anything to get someone off or abuse them sexually except vaginal intercourse; vaginal intercourse without consent is rape). What is interesting is that plain sex by force and without consent is Rape 2, and it's punishable by not more than 20 years in prison, and the prosecutor can file a notice to seek a mnimum 15-year sentence. But anal sex without consent and without force is Sexual Contact 4, which, as I noted, carries a maximum of 1 year in prison and a $1000 fine. Rape 2 also applies for sex with anyone under 14 if you're more than 4 years older than them. I discovered something interesting which I think is a quirk in the rules here in Maryland. Apparently, if I'm reading the statute correctly, having sex with someone without their consent requires some form of force or threat of force to be a crime. § 3-303 of Maryland's criminal code defines Rape 1 as vaginal intercourse with another by force or threat of force and without consent while using a dangerous weapon. § 3-304 defines Rape 2 as vaginal intercourse with another by force or threat of force and without consent. The odd thing is that the law here in Maryland does not seem to make having sex - vaginal intercourse - with someone without their consent but not using force as a crime. My guess is that getting on top of her probably constitutes the "force" and that's how they'd charge the crime. |
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