by Husain Ahmad
We are witnessing a growing misconception as to what it means to perform sexual activity lawfully with the agreement and consent by both parties. The notion of lawful sex is inherent in every person’s mind but there’s a thin line between what is lawful and what constitutes rape or harassment. A man may say that he is having a fully lawful and consented sexual activity with another by thinking that his partner has agreed to the activity by uttering the three-lettered ‘magic word’ to which most men believe is the Ali Baba and the Forty Thieves’ ‘Open sesame..’ equivalent to consent.
To most men, having sex with their spouse/ girlfriend who has reluctantly acquiesced to the activity—thinking by doing so, she is atoning to whatever quarrel that has happened between them—constitutes valid consent when in reality this area is rather vague. Section 74 of the Sexual Offences Act 2003 in English law states that a person consents to sex only when agreed by choice. This legislative provision can be interpreted without much constraint especially when deciding on a case where too many factors have to be taken into account which will then be decided by a jury. In Malaysia, the statutory definition of consent is elucidated under section 375(c), (d), (e), (f), (g) of the Penal Code. In Canada however, "consent means (...) the voluntary agreement of the complainant to engage in sexual activity" without abuse or exploitation of "trust, power or authority", coercion or threats. Consent can also be revoked at any moment.
Dr James Roffee, a senior Criminology lecturer from the Monash University School of Social Sciences deduced that there is a dire need for a universal definition of consent because the notion of consent is flanked by its moral and legal propositions which then creates a lacuna when it comes to arguing a person’s right to free-will, for example, a person might agree to a sexual relationship with his/her own biological brother/sister which is legally called incest and is illegal in most countries.
The issue of legal age is also considered when taking consent into account for example, where a minor, consents to sexual activity with an adult, however so it is still unlawful because in every country, strict guidelines as to the legal age to consent is laid out in statutory provisions. However, in the United States, there exists a sort of relaxed law pertaining to the legal age of sexual consent called the ‘Romeo and Juliet laws’ which provides exemptions to two minors with similar or close age or a mere adult with a closely aged minor to imply consent (laws like that do not exist in Malaysia).
Another area of consent that needs scrutiny is unwanted sexual activity which can involve rape or other forms of sexual assault, but may also be distinguished from them. A study conducted by Jesse Ford in 2018 showed that there are men who have unwanted sex with women to "prove they are not gay", Ford also states that “sexual assault is unwanted sex, but not all unwanted sex is sexual assault." A 1998 study showed that both men and women "consent to unwanted sexual activity" in heterosexual dating; in these cases, they consented to unwanted sex to satisfy their partner, "promote intimacy", or avoid tension in the relationship". The authors argue that estimates of "unwanted (non-consensual) sexual experiences" may confound non-consensual sex and consensual sex.
Furthermore, issues of verbal and non-verbal agreement are also of great import in ascertaining the existence of consent. Those who are likely to imply consent, as opposed to those who expressly mention their agreement in words, usually do so either by expression of body language or by one’s own sexual nature (i.e. when one is into teasing, or a little rough play).
In reality, the area of consent is almost entirely behavioural and dependant on the state of mind and relationship of both parties. Let's say for example, psychologically, a person may be experiencing some sort of mental health problem(s) which may seriously hinder their ability to think rationally whether they would like to give their consent, hence this will not constitute valid consent. Another scenario that unfortunately happens to be reality for many in the workplace is when one’s position or power has the ability to induce another from a lower rank to have sexual intercourse. The victim may reluctantly agree due to either the fear of being ostracised or due to an intrinsic sexual gratification that lies within a person’s behaviour.
Moreover, ‘relationship’ is a word that is constantly misused when it comes to construing consent. When complete strangers are engaged in sexual activity, there is an obligation for the investigators and the courts to ascertain the existence of a valid consent with more compelling evidences. However, the question then arises, is marital rape legal?
Though some may say the use of the word “rape” is rather obscene in the context of marriage, the definition of rape still remains the same according to your respective jurisdiction. In Malaysia, rape is generally defined under section 375(a), (b) of the Penal Code which states that, ‘a man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions: (a) against her will; (b) without her consent;’ and the breach of this provision can occur within married couples, although Malaysia does not allow citation on their case laws pertaining to sexual offences, there are English common law cases such as R v R where it was decided by the House of Lords after a long battle at the High Courts of England that a husband can be found guilty of raping his wife.
References
Roffee, James A. (2015). "When Yes Actually Means Yes". Roffee James A., 'When Yes Actually Means Yes: Confusing Messages and Criminalising Consent' in Rape Justice: Beyond the Criminal Law eds. Powell A., Henry N., and Flynn A., Palgrave, 2015. pp. 72–91. doi:10.1057/9781137476159_5. ISBN 978-1-349-57052-2.
Beres. A, Melanie (18 January 2007). "'Spontaneous' Sexual Consent: An Analysis of Sexual Consent Literature". Feminism & Psychology. 17 (93): 93. doi:10.1177/0959353507072914.
Wilson, William (April 2018), “Rent For Sex”. lawslondoninternational.files.wordpress.com/2018/04/blog-transcript.pdf
Netto, Alex (31 January 2020), “In Malaysia, you can charge a man for rape, but NOT a woman. Here's why”. https://asklegal.my/p/women-rape-sexual-assault-same-sex-men-malaysia