Implied Consent: Your Yes ≠ Their Yes
Arshia Bathla explores the subtle nuances of implied consent and aims to delineate the fine lines involved.
When asked about her experience with consent, 20-year-old Shambhavi says, “Sometimes, boys have tried to shame me into indulging in sexual acts that I wasn’t comfortable with. They assume that the way that I dress, the ‘casual’ lifestyle that I follow, or even the sexual partners I’ve had are indicators of consent for them. I want people to understand that this is not how consent works, I can say no whenever I want to and it’s not a decision someone else gets to take for me.”
What is Implied Consent?
A simple Google search will tell you that ‘Implied Consent’ is consent which is not expressly granted by a person, but rather implicitly granted by a person’s actions and the circumstances of a particular situation or in some cases, by a person’s silence or inaction.
But often we have found that in most situations in today’s day and age, consent is a concept not clearly understood by many.
Consent in the Workplace
A survey conducted by the Network of Women in Media, India, and Gender at Work, found that over one-third of respondents had experienced some form of sexual harassment at their workplaces—and over half of them did not report the incident.
Decades’ worth of struggles is the reason women are starting to get equal opportunity in their workspace, but studies have shown that often this results in a need for the assertion of power by men over women. These may be through various means, often including sexual favors for employment or opportunities and humiliation in the workplace.
Ayesha Singh says, “I’d finally landed the internship I had always wanted, and my superior was someone I had always admired, on my second day he told me that my admiration must translate to sexual interest too. This wasn’t the case, but because of his position I found it difficult to say no, it would’ve resulted in me losing my dream.”
In the workplace, it is often assumed that a woman’s character, her body language, or her idolization of superiors are tokens for consent. Women in the workplace are advised to be careful about the clothes that they wear, the way that they carry themselves, and even the way they interact with their colleagues. A man’s pat on the back is taken quite differently from that of a woman’s, sometimes even used as an indication of “interest.”.
“But sir, she was so casual around me I assumed she was interested in me and wanted to take it forward.” Or even, “She was wearing such short skirts to work, I assumed she must be interested in sex, naturally, why would she say no to me?” “We always drink together, I assumed her character is such so I thought she’ll want to be with me.” are statements Ayesha never thought she’d hear but unfortunately have become part of her daily life.
A woman’s Character
“Kisi bhi ladki ko, kisi bhi ladke ke saath, kahi bhi akele nahi jana chahiye. Kyunki aisa karne pe, wahan ke log ye assume kar lete hai ki wo ladki willingly wahan pe aayi hai aur unhe usse touch karne ka license issue kar dia gaya hai.”
What you read is a hard-hitting dialogue from Taapsee Pannu’s Pink, a movie that brought to light the harsh reality of implied consent in today’s society. It’s often found that if a woman wears certain types of clothes, has had multiple sexual partners, or even follows a certain lifestyle, people assume that she’d welcome even unwanted sexual advances.
In a study conducted in 2017 by Susannah Zietz and Madhumita Das, on perceptions of sexual harassment among young men in Mumbai. It was found that a girl’s perceived character played an important role in deciding whether she ‘deserved’ to be harassed or not, a participant of the study was found to say “First, we look at the girl. If she is good, then we don’t do anything. If we feel that she is of loose morals, then we start teasing her.”
The idea that harassing a sexually active woman is less of an offense than to harass a “purer’’ woman is frighteningly common and prosecution for the same often turns on the need for the victim to prove that she did not “have it coming.” In India, this notion only contributes further to the horrifying reality of prevalent rape culture.
As shown in the movie Pink, society always finds it easier to assume that since the girl has a certain “unacceptable” character, that because she was drinking in the club that one night or dancing with boys, she had lost all rights over her physical and sexual autonomy the very minute she showed signs of not fitting into the mold of a purer woman.
It’s a sick truth that a woman’s lifestyle choices and her willingness to consent to sexual acts are thought to be tied to each other, and it’s a knot the patriarchal society refuses to untie.
You’re a boy, don’t you always want sex?
Source: Project Unbreakable, In 2011, Grace Brown, a photography student in New York started Project Unbreakable, to give a platform to sexual assault victims, many men came forward to share heartbreaking stories of harassment and dismissal of their traumas by society.
Due to masculine gender socialization, it’s found that male sexual assault victims have to face various stigmas.
“Often, male survivors may be less likely to identify what happened to them as abuse or assault because of the general notion that men always want sex,” says Jennifer Marsh, the vice president for Victim Services at RAINN, an anti-sexual violence organization.
In many cases, arousal is considered to be consent enough, Roy J. Levin and Willy Van Berlo wrote in an article in the Journal of Clinical Forensic Medicine that slight genital stimulation or stress can create erections “even though no specific sexual stimulation is present.”
Societal pressure and norms often invalidate the need for consent in the case of male assault victims, especially when survivors share their trauma within social circles.
Akash says, “You’re a boy, she’s showing interest in you, why are you uncomfortable? Just relax, be a man.” or “As it is you like to engage in sexual activities, why won’t you be interested in doing this with me? Action mil raha hai na?” are things he had to hear when he expressed discomfort regarding a particular non-consensual encounter.
Marriage ≠ Consent
Marriage as an institution shouldn’t imply blanket consent for physical relations, but, in August 2019, the former Chief Justice of India Dipak Misra said that giving validity to marital rape above the age of 15 years was not a good idea, “because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values,” Deccan Herald quoted Misra as saying.
Source: Kirthi Jayakumar, The Red Elephant Foundation
To give some context to our reader, under Exception 2 to Section 375, it allows the husband of a girl child, between 15 and 18 years of age a blanket liberty and freedom to have non-consensual sexual intercourse with her. Her willingness or consent is of no concern.
It is a simple truth that being married does not mean that content should be taken for granted, by refusing to acknowledge the existence of marital
rape, the Government reinforces the role that has been forced upon women for centuries, that of a ‘provider’ existing only to satisfy the needs of men, without a say in the matter.
The existing belief is that when a woman gets married, she automatically signs a contract that allows blanket consent to her partner, and for a woman to refuse her ‘duty’ would result in anarchy and the disruption of this seemingly sacred institution.
A report by the National Family Health Survey states that nearly two in five (37 percent) married women have experienced some form of physical or sexual violence by their husband, and one in 10 married women have experienced sexual violence at the hands of their husband, i.e., they have been physically forced against their will by their husband to have sex or perform other sexual acts they did not want to perform. These statistics reveal the dark truth of implied consent within the institution of marriage in India and the Government’s decision to immunize a husband’s actions only endanger the safety of women even more.
Consent in Relationships
Being in a relationship isn’t a one-way ticket to blanket consent, to initiate and sustain patterns of healthy communication it is important to ensure that boundaries are set.
It’s believed that emphasizing explicit consent takes away from the spontaneity of the moment, but as said in this article by The Guardian,
“If the mood can be ruined with a question, it probably wasn’t so hot, to begin with.”
Source: @notyourcatbutt, Instagram
Just because you’ve kissed a person does not mean they will always want to take it to the next step, implied continuous consent is a myth and it’s necessary to always check in with your partner!
Some of the best ways to seek and ensure consent have been stated in this article by Feminism In India,
- The only best way is to ask, politely yet firmly, but not more than once.
- Another thing that helps is regularly checking in on your partner at the time of any kind of sexual activity. Words like, “Hey, do you like this?”, “How are you feeling?” etc.
- Just try to focus on your partner’s body language at all times and if something feels amiss, please pause right there and ask them if everything is fine.
Source: @niceforwhatmvmt on Instagram.
Our daily lives are evidence enough that this flawed understanding of consent is deeply embedded in our thoughts and beliefs.
This article is a reminder to our readers, that a person’s clothes, their sexual history, or even their relationship with their significant other do not fall under the umbrella of blanket consent.
It’s a sad truth that consent is tangled in the web of gender, caste, and class and it’s up to us to provide appropriate education about sexual health and consent in a positive light and I hope each one of us will fulfill this responsibility.
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