Consent has been in the news a lot recently. Unfortunately, one of the reasons consent has been in the news is because some people do not understand – or respect – this fundamental legal concept.
Media coverage of non-consensual incidents is encouraging because it indicates the importance of consent. Unfortunately it also indicates how many people – including some media outlets – don’t fully understand consent. No matter how well-intentioned their efforts are when pundits mischaracterize the meaning of consent it further confuses people.
Our hope is that this site will help people have a greater understanding of – and appreciation for – consent. And we believe that consent games are a great way to learn this important information.
Consent is a legal concept, not a political issue.
Consent is an important legal concept affects all of us all the time. Although here we are focusing on the meaning of consent as it relates to relationships between people, consent also impacts us in other ways.
- medicine: informed consent helps a patient decide if they want to have elective surgery
- privacy: a driver can grant, deny, or revoke consent to the police to search their car
So, although for purposes of this site we are focusing on consent between people as it affects dating or sexual relationships, consent still has the same legal meaning in other contexts.
One reason consent is often misunderstood is that it is a legal term of art. This means that its a word commonly used by those in the legal profession. It also means that its meaning has evolved through common law, statute, and judicial interpretation; in fact its precise meaning can vary from one jurisdiction to another!
We will begin with a few dictionary definitions of consent to get us started:
- consent: to give assent or approval (Merriam-Webster)
- consent: give permission for something to happen (Oxford)
Although these definitions are fairly straightforward they are also fairly broad and therefore open to interpretation. This series of definitions from Black’s Law Dictionary, the go-to resource for legal professionals, provides greater detail:
- consent: a concurrence of wills
- express consent: that directly given, either lira voce or in writing
- implied consent: that manifested by signs, actions, or facts, or by inaction or silence which raise a presumption that the consent has been given
- consent: an act of reason, accompanied with deliberation, the mind weighing as in a balance the good or evil on each side
Black’s Law Dictionary has provided much greater detail about consent but in doing so has relied on other legal terms of art – which themselves have very specific legal meanings which might be different than the way we use these words in everyday conversation. In order to retain the necessary details about consent but reduce the ambiguity from the legal terms we think it is helpful to create elements of consent based on the above definitions.
Elements of Consent
We think it is helpful to take the legal definition of consent and then break it down into its individual elements in order to help everybody have the same precise understanding of consent. After evaluating each element we believe that its true meaning will become more clear.
Consent is a fundamental part of a healthy relationship that involves giving and getting permission which is:
- freely given;
- actively given; and
Consent is Informed.
For permission to be informed requires that the person giving that permission has a full appreciation of what that permission entails.
For example, a person must be beyond a certain age to legally engage in sexual activity. The rationale for this is that while they are young they aren’t able to fully appreciate the consequences of sexual activity.
Consent is Freely Given.
For permission to be freely given requires that the person giving that permission does so free of coercion, intimidation, force, or threat.
For example, an employee is not freely giving permission for their work supervisor to engage in sex with them if they are only doing so out of fear that they would otherwise lose their job.
Consent is Actively given.
For permission to be actively given requires that the person giving that permission actively communicates it verbally or through action.
For example, an unconscious person cannot actively consent (nor can a person who is too drunk or otherwise incapacitated).
Consent is Revocable.
Permission given by a person is revocable – they are able to change their mind and revoke or modify that permission whenever they so choose.
For example, if a person engaged in any number of consensual activities with you in high school that does not mean that the consent still exists when you see them at the 50 year reunion.
Consent: In Summary
Consent involves giving and getting permission which is informed; freely given; actively given; and revocable.
Additional Resources about Consent
Here are some additional resources on consent which you might find helpful. These resources have been created by other groups or individuals and we are not responsible for their content. Our hope is that your understanding of consent will become more nuanced as you are exposed to more consent resources.
- Consent: Anti-Violence Project at University of Victoria
- It’s time . . . to talk about consent: National Sexual Violence Resource Center