I recently taught a class at a local LA private school and during our section about consent, the students asked a lot of really good questions about consent laws in the United States. Some of the questions even required me to say, “ I don’t know. Let me do some research and I’ll get back to you.” So, I thought answering some frequently asked questions was a good lead into an ongoing series about consent.
What is consent and why is it important?
Consent is not inherently sexual. The most basic definition of consent is “permission for something to happen or agreement to do something.” Sexual consent is an agreement to participate in a sexual activity. Before being sexual with someone, you need to know if they want to be sexual with you too. It’s also important to be honest with your partner about what you want and don’t want.
Consenting and asking for consent are all about setting your personal boundaries and respecting those of your partner and checking in if things aren’t clear. Both people must agree to sex every single time for it to be consensual. Consent must be given freely and is never coerced. Consenting is a choice you make without pressure, manipulation, or under the influence of drugs or alcohol. Consent is reversible. Anyone can change their mind about what they feel like doing, anytime. Even if you’ve done it before, and even if you’re both naked in bed. Consent must be informed. You can only consent to something if you have the full story. For example, if someone says they’ll use a condom and then they don’t, there isn’t full consent. When it comes to sex, you should only do stuff you WANT to do, not things that you feel you’re expected to do. Saying yes to one thing (like going to the bedroom to make out) doesn’t mean you’ve said yes to others (like having sex). Consent can never be implied or assumed regardless of any previous history of sexual contact. No matter what a person verbalizes, consent can never be given when a person is severely intoxicated or impaired or at any point in the encounter after the person has said NO. Without consent, sexual activity (including oral sex, genital touching, etc) is sexual assault or rape.
Consent should be enthusiastic or engaged. This can be expressed verbally or through nonverbal cues, such as positive body language like smiling, maintaining eye contact, and nodding. These cues alone do not necessarily represent consent, but they are additional details that may reflect consent. It is necessary, however, to still seek verbal confirmation. The important part of consent, enthusiastic or otherwise, is checking in with your partner regularly to make sure that they are still on the same page.
What are consent laws and why do they exist?
Firstly, age of consent is the age at which a person is considered to be legally competent to consent to sexual acts. Age of consent varies state-to-state and country-to-country so look up what the age of consent is in your area. In California, the age of consent is 18. In Colorado, the age of consent is 17. Any adult who engages in sexual activity with a person younger than the age of consent is unable to legally claim that the sexual activity was consensual, and such sexual activity may be considered child sexual abuse or statutory rape.
Consent laws were created to protect minors from sexual advances and they were intended for people around the same age to consent with each other. We can talk about power imbalances and other ethical dilemmas of consent laws in another post in this series.
What are Romeo and Juliet laws?
A Romeo and Juliet law, which some states have, carves out a “close-in-age” exception to the general rule that you cannot have sex with a minor below the age of consent. But the guidelines are very specific. Texas, for example, has a Romeo and Juliet law. It states that a person:
between the ages of 14 and 17 can consent,
with someone within three years of their age,
so long as the other consenting party is at least 14.
So a 14 year old can consent with a 17 year old but not with an 18 year old. If your state has a Romeo and Juliet law, check out the specifics. If you are unsure or have questions about those specifics, talk to a lawyer in your state.
Romeo and Juliet laws say it is not always a crime to have sex with a minor. The purpose is to decriminalize teenage sex. Such laws generally allow someone over 14 to consent to sex, but only with someone who is no more than three years older. California does not have a Romeo and Juliet law. Under Colorado's Romeo and Juliet law (also called “the close-in-age exemption”) minors under 15 may have consensual sex with partners less than four years older, and minors age 15 or 16 may have consensual sex with partners less than 10 years older.
How do I get consent?
Asking permission before you change the type or degree of sexual activity with phrases like “Is this OK?”
Confirming that there is reciprocal interest before initiating any physical touch.
Letting your partner know that you can stop at any time.
Periodically checking in with your partner, such as asking “Is this still okay?”
Providing positive feedback when you’re comfortable with an activity.
Explicitly agreeing to certain activities, either by saying “yes” or another affirmative statement, like “I’m open to trying.”
Using physical cues to let the other person know you’re comfortable taking things to the next level
What is informed consent?
There is a lot that goes into informed consent. It is a medical term brought about due to the Tuskegee Syphilis Experiments conducted by the US Government until 1972. Black men were lied to and told they were receiving medical help when they were actually infected with syphilis in order to watch how it would degrade the body long term. One of the “unintended” consequences of the experiment was that the men who were part of the experiment passed syphilis onto their wives who were not a part of the experiment. And they unintentionally passed it along to some of their children through childbirth. Would they have agreed to be a part of the experiment if they knew what was actually happening? We’ll never know because they were never given the choice.
Now again, why would we use a medical term for sexual activities? At its heart, sexual informed consent is about making sure your partner has bodily autonomy at all times and that bodily autonomy is never infringed upon. So if a partner said they will wear a condom during sex and they don’t, or they remove it without your knowledge? That’s infringing on their partner’s bodily autonomy. If a partner says they’re on birth control and they’re not? That’s infringing on their partner’s bodily autonomy.
Can you take consent away?
Consent can be taken away at any time. Consent should always be reversible. If you are not allowed to say no once you’ve given an initial yes, it is not consent. If you say no at any point, any activity should stop. You don’t have to feel bad about changing your mind and you should not be shamed either.
We’ll be diving into other topics within consent in future blog posts, so stay tuned!