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Yes Means Yes: Consent and Your Rights

Trigger warning: this article discusses sexual abuse

Most of us got taught about condoms and HIV/Aids during sex ed at school. But how many of us got taught about consent: what it means, why it matters, and how to give it (or refuse it)? Since the explosion of #MeToo, there’s never been a more important time to discuss consent than now.

Ever been catcalled while you walked home, and felt intimidated, objectified and afraid? #MeToo. Ever had a guy put his hand on your shoulder, seemingly harmlessly, but felt your hair stand on end and a chill run down your spine? #MeToo. Ever had your butt slapped while you waited at a bar, or your knee groped on public transport? #MeToo. We were victims of sexual assault; none of us gave our consent.

According to the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007, sexual assault is defined as ‘a person who unlawfully and intentionally sexually violates [you] without [your] consent’. The same Act defines consent as ‘voluntary or un-coerced agreement’.
A lack of consent includes being ‘subjected to a sexual act as a result of force or intimidation … a threat of harm, where there is an abuse of power or authority … or an unwillingness to participate…’ as well as ‘where the sexual act is committed under false pretences or by fraudulent means’ or ‘where [you] are incapable of appreciating the nature of the sexual act, including if [you] are asleep, unconscious, in an altered state of consciousness including under the influence of any medicine, drug or alcohol…’ The problem? Consent is being defined here largely in terms of traditional sexual activity. What about the unwanted gropes and butt-grabbing?

Consent is also alarmingly misunderstood. A recent study by the National Sexual Violence Resource Center found that there is still significant disparity between women and men as to what is recognised as sexual misconduct. ‘In each category, 18-to-34-year-olds are less likely than older adults, and men are less likely than women, to view an action as sexual assault,’ the study stated. This gap is the largest when we look at how men and women view voyeurism, sexual coercion and verbal harassment. And a 2015 Washington Post poll found that one
in five university students considers consent to mean the absence of saying ‘no’.

But what happens if you can’t say no, or aren’t even in the position to say no in the first place – for example if someone shouts at you while you walk along the street? We’re not taught that if we don’t give our consent to any type of attention, we’re being assaulted. And men aren’t taught that if they perpetuate this kind of behaviour, they are guilty of assault.

It’s clear that archaic ideas of consent aren’t good enough – something social media confirmed via #WhatConsentMeansToMe, the hashtag that followed its explosive older sister #MeToo last year. The allegations against Harvey Weinstein in October gave the world a reality check on how little we actually know about the importance of giving and asking for consent – not to mention how poor men are at engaging in this dialogue. Dozens of women broke decades of silence to call out the Hollywood exec who’d sexually assaulted them, from unsolicited massages to rape. For most, it was the first time they spoke about it. The allegations kick-started the online movement of #MeToo and the hashtags that followed. 

#MeToo has reached more than a million tweets (and counting). It’s clear that the problem around consent leeches through ethnicities, demographics, ages and backgrounds to affect all women. Patriarchy and rape culture have created an environment in which, as women, we’ve become so used to being harassed that we shrug it off as normal.

In South Africa, #MeToo and the issue of consent hit an especially raw nerve. With more than 51 000 recorded sexual offences in the last year alone and more than 142 incidences every day (according to SAPS Crime Statistics), South Africa is in crisis. Now more than ever we need to be talking about consent.

Natalie* knows first-hand the dangerous consequences of not talking about it. As a 22-year-old student in 2015, she was at a Grahamstown house with friends and an acquaintance she didn’t know well. ‘I was drunk and had smoked some pot,’ she says. ‘I was borderline passing out and vulnerable, so I went to a downstairs bedroom to sleep.’ But as she drifted in and out of sleep, she heard the door open. In walked a man; the acquaintance who’d been partying with her friends. ‘I was uncomfortable. I didn’t know him. I was passing out but, sensing I was in danger, I mustered all my strength to get up and try to leave. That’s when he locked the door.’

Natalie knew she had to find a way out. She pleaded with him to leave the room. He refused. Trying to reach a compromise where she’d be safe, she negotiated: ‘I told him that if he wanted to sleep in the room, I would sleep on the floor – but we weren’t going to sleep in the same bed. He kept refusing.’

Then the assailant forced himself on her. ‘He had his hands around my neck and I was too inebriated to push him off.’ As the assault progressed, he became more aggressive. ‘He was having sex with me without my consent.’ The shock, physical force and trauma of being violated caused Natalie to black out completely.

The next morning, she woke up to the man’s arms wrapped around her, as though the whole experience had been consensual. ‘I pushed him off me and ran upstairs to the host of the house. I kept repeating that I needed to go home.’

Had non-sober Natalie been raped, or was she just out of control or couldn’t be trusted to remember if she’d been ‘up for it’ at the time? The answer, without a sliver of a doubt, is that she’d been raped. And that there could be any debate about whether or not she was raped – and FYI, in our society, there’d be plenty of debate – is why educating ourselves about consent is so important.

Yes means yes

What if you’re intoxicated or asleep, like Natalie was – does that mean you consent by default? How do we teach men that catcalling, uninvited touching or unsolicited dick pics are also a form of sexual assault? How do we flip the power balance so that the onus is on the perpetrator to ask whether it’s okay before doing anything, rather than on the receiver to say no after having already had their space, autonomy and dignity violated? It’s one of the reasons why, in 2008, Jaclyn Friedman and Jessica Valenti published Yes Means Yes, bringing affirmative or enthusiastic consent into the conversation. The deal? Unless someone proactively says yes, they have not consented. It puts the power dynamic back in balance, and serves up more clarity: are they too inebriated, tired or scared to say yes affirmatively? Then they sure as hell aren’t consenting.

In a similar way, Planned Parenthood has laid out five conditions of consent that must be met every single time for any kind of attention or contact to be consensual. The consent must be:

Freely given. Engaging in sexual activity is a decision that should be made without force, pressure, manipulation or intoxication. 

Reversible. You can change your mind at any point before or during any kind of sexual activity. Even if you’re in the middle of sex, your yes can turn into a no.

Informed. This is about honesty. For example, removing a condom when you consented to using one is not informed consent.

Enthusiastic. If the response to having sex isn’t a resounding YES! (through body language
or verbally), it isn’t consent.

Specific. Just because you’ve consented to one act doesn’t mean you’ve consented to them all,
and you can withdraw consent at any point. 

There’s an expectation that unless you scream or shout ‘no’ as a woman, you are giving your consent. But that is not true. You need to emphatically and proactively say yes. These positive ideas of consent need to extend much further than sexual activity or penetrative sex. They must exist in every interaction you have – including with that jackass catcalling you on the street.

We should also be talking about consent as early as possible. ‘As adults, we encourage children to hug uncle or auntie so-and-so even when they don’t want to,’ says Mara Glennie, founder of the TEARS Foundation, an organisation dedicated to empowering survivors of sexual violence and ending gender-based violence. These are the beginnings of our failure to instil an understanding of consent in our children: we tell them to do what they physically don’t want to do, often to be polite. We are teaching our children not to speak up when they feel uncomfortable; not to say no in case it may be considered rude. But the ability to speak up even if it’s rude or creates a fuss is one we all need to learn – and respect in others.

Finding hope and healing

For Natalie, the trauma that followed her rape was unspeakable. ‘I didn’t tell anybody what happened because I was scared.’ She was also afraid of laying a charge. ‘I didn’t have proof. There were no scratches or bruises.’ (It’s important to reiterate: sexual assault doesn’t have to leave  visible marks to have been non-consensual.) 

Whether you lay a charge or not, Glennie says that it’s imperative ‘to receive counselling and take any remedial action to seek help’. For Natalie, that help came via joining organisations dedicated to ending gender-based violence. ‘I’ve never cried so much, but I’ve also never felt so much solidarity,’ she says. ‘I found safety in sharing stories with fellow survivors of assault. I came out publicly as a survivor through a Facebook status in 2016 after I saw more and more women sharing their experiences of abuse.’ Coming forward helped her begin her healing process – and empower others. ‘I’ve been vocal about it ever since for those who can’t – because I’ve been there. People often approach me to say, “This happened to me, too.” I don’t think there is a single woman who can’t say #MeToo.’

The only way to dismantle rape culture and talk openly about consent is to stop victim-blaming, she says. ‘Seeing any kind of sexual assault framed in a way that says “You shouldn’t get drunk”, “You shouldn’t have worn those clothes”, “You shouldn’t have been alone so late” is deeply destructive, and a totally incorrect understanding of consent. It is never the victim’s fault. Clothes don’t rape or assault, drinks don’t rape or assault, drugs don’t rape or assault – people
rape and assault. We can only begin to dismantle rape culture if we talk openly and honestly about consent.’

So, let’s be clear: consent is required essentially any time you’re doing something that involves another person. From sex to eating ice cream, an enthusiastic yes is what makes an act consensual; what’s more, consent can
be revoked at any time. 

*Surname has been withheld

What to do if youve been assaulted

Everyday assault

When it comes to catcalling and other types of everyday assault, your priority must always be to stay safe. Try to get to an area that’s filled with people as soon as possible. If need be, step into a nearby restaurant or shop, and let the staff know you’re being followed or feeling harassed. If you’re at a bar, let the bar staff know you’re being assaulted. Don’t be embarrassed – it’s likely they’ve experienced the same, too.

Carrying pepper spray (we like the Lipstick Pepper Spray (R125 at Takealot), which is shaped like a lippie) can be useful if you’re feeling intimidated. If you want to empower yourself to handle an unavoidable confrontational situation, try a self-defence course such as the ones offered by Cobra Defence and Elite Defence.

Online

Never engage with inappropriate users online: report them to the platform, then block them. If you’re concerned an online user could become abusive or is stalking you IRL, report it to the police and get a restraining order. Keep a diary with dates and times of concerning behaviour to use as evidence.

Sexual assault

‘If there was penetration, immediately get tested for STIs,’ says TEARS Foundation founder Mara Glennie. Go to any free government clinic or hospital, a Clicks clinic or a specialised private clinic such as Marie Stopes or Better2Know. Try to avoid washing yourself or your clothes as this may destroy evidence. Put the clothes and underwear you were wearing in a paper bag (not plastic) to give to the police as evidence.

If you want to report your assault, here are the steps to take, according to the One in Nine Campaign:

Make a statement at any police station. Tell the constable that you want to lay a rape or sexual assault charge.

You have the right to a private room where you can make a statement and talk to trained volunteer counsellors.

You have the right to speak with a female officer.

The police must take you to a hospital for a medical examination. This may include physical tests such as swabbing for semen, and is especially important if you are reporting a rape.

The doctor will fill out a J88 form that will record all the evidence in the exam.

Once you’ve received medical attention, the police must take you back to the police station so you can give a statement to an investigating officer.

You have the right to take a copy of your statement and receive the case number to keep track of the investigation.

Get help

Lawyers Against Abuse

Legal Aid Advice Line (free)

  • Call 0800 110 110 (toll-free) or the Please Call Me service through 079 835 7179
  • legal-aid.co.za
  • They will also be able to tell you which Legal Aid office is closest to your location

POWA

  • Call their HQ: 011 642 4335
  • Download the free POWA GBV app for Android or iOS to report abuse and find help centres near to you

LifeLine

  • Call 0861 322 322

TEARS Foundation

  • Dial *134*7355#

Police

 

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