Consent to Sexual Activity Must Be Expressed
Consent is a mutual, ongoing, and enthusiastic agreement to engage in sexual activity. It must be made in a clear state of mind and free from coercion. Definitions of consent can alter as it pertains to the law, medicine, and research. In cases involving sexual activity, consent can only be expressed, not implied.
Expressed consent is one that is clearly and unmistakably stated. It may be given verbally or nonverbally such as a clear gesture or nod.
Implied consent is not an acceptable means of consent. A person’s behavior or circumstances of a particular situation are not consent and the absence of ‘no’ is not consent. There are no U.S. states that allow “implied consent” as an excuse for rape in a court of law.
Consent only happens when both people voluntarily, explicitly, and enthusiastically agree to engage in sexual activity. Flirting, talking, showing interest or any other actions do not equal consent.
Conditions for Consent
First and foremost, consent to sexual activity is required by law. It must be mutual, free from coercion, and given in a clear state of mind. It must be ongoing at all stages of sexual activity; and even when consent has been obtained, it is conditional, changeable and can be withdrawn. Non-consensual sexual activity (even kissing and touching) is against the law
Age and mental capacity matter! By law, children or minors below a certain age, (the age of sexual consent in that jurisdiction) are not able to consent to sexual acts. An altered state of mind can also prohibit the ability to give consent
In cases of statutory rape (sex with a minor) consent is unable to be given by virtue of being underage, having a mental disorder, or being intoxicated and therefore unable to make a reasonable judgment about the conduct.
Ongoing “active consent” means that there is mutual consent to keep going. It means making sure that your partner(s) are still active willing partners. If during a sexual encounter a person withdraws consent, shows signs of being uncomfortable or suddenly loses all enthusiasm – they are not giving ongoing active consent. Stop and check in with them.
Coercion is the practice of persuading someone to do something by using force, intimidation or threats. Therefore, consent cannot be given if your sexual partner(s) feel pressured, intimidated and/or threatened.
Consent must be obtained every time and at every level of sexual activity. Just because your partner consented in the past, does not guarantee they will consent to the activity in the future. Sexual partners have the right to set and adjust boundaries based on what feels right in the moment.
Relationship status does not make consent automatic. Whether it’s the first time or the hundredth time, a hook-up, a committed relationship or marriage, every single act of physical intimacy requires its own consent. If anyone involved in sexual activity isn’t consenting, then it is sexual violence.
If you or a loved one has been hurt or is being hurt by sexual violence, StrongHearts can help. StrongHearts Native Helpline is a free, culturally-appropriate and anonymous helpline for Native Americans and Alaska Natives impacted by domestic, dating and sexual violence. Click on the Chat Now icon for one-on-one chat advocacy or call 1-844-7NATIVE (1-844-762-8483). Advocates are available daily 7 a.m. to 10 p.m. CT. As a collaborative effort with the National Domestic Violence Hotline (The Hotline) and the National Indigenous Women’s Resource Center, after-hours callers can connect with The Hotline by choosing option one.