According to the Criminal Law (Sexual Offences and Related Matters) Amendment Act 6 of 2012, 'consent' means voluntary or unforced agreement. Consent is an agreement between parties to engage in sexual activity.
There are many ways that consent can be given. Consent does not have to be verbal, but verbally agreeing to different sexual activities can help both you and your partner respect each other’s boundaries.
Considerations to determine if there was consent:
- Parties involved in interpersonal relations must be able to communicate effectively and agree to any interpersonal activities.
- It is the responsibility of the person that initiates any type of sexual activity to obtain the other person’s consent.
- Silence does not imply consent.
- Previous or present sexual or other relationship between the parties does not imply consent.
- Consent is not implicit in a person’s manner of dress.
- Accepting a social invitation is not consent, nor does it imply consent.
- Consent will not be effective when it is obtained from a person whose capacity to consent is diminished because they are asleep, unconscious or in an altered state of consciousness resulting from the use of alcohol, medicines or drugs to the extent that it adversely affects their judgement.
How does consent work in real life?
When you are engaging in sexual activity, consent is about communication. It should happen every time. Giving consent for one activity, one time, does not mean giving consent for increased or recurring sexual contact. For example, agreeing to kiss someone does not give that person permission to remove your clothes. Having sex with someone in the past does not give that person permission to have sex with you again in the future.
You can change your mind at any time.
You can withdraw consent at any point if you feel uncomfortable. It’s important to clearly communicate to your partner that you are no longer comfortable with this activity and wish to stop. But, because it can be difficult for someone to communicate that they’ve changed their mind, or never meant things to get so far, it’s important that both parties check with each other before moving to the next level. The best way to ensure both parties are comfortable with any sexual activity is to talk about it.
Positive consent can look like this:
- Communicating when you change the type or degree of sexual activity with phrases like “Is this OK?”
- 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
It does NOT look like this:
- Refusing to acknowledge ‘no’. NO means NO.
- Assuming that wearing certain clothes, flirting or kissing is an invitation for anything more
- Persisting when someone seems hesitant or reluctant
- Pressuring someone into sexual activity by using fear or intimidation
- Assuming you have permission to engage in a sexual act because you’ve done it in the past
- Freezing up, saying they’re tired, crying, or pulling away are a few examples of ways a person can communicate “no”. A person doesn’t have to yell “no”, scream, kick, or bite for it to be clear that they don’t want to engage in sexual activity.
- Having sex with someone being under the legal age of consent, as defined by the state (in South Africa, 16 years of age), even if they seem willing
- Having sex with someone who is incapacitated and unable to communicate because of drugs or alcohol