POSH – Understanding consent

What is Consent?

Any activity that is sexual requires consent, which is defined as explicit and voluntary agreement to participate in specific sexual activity. Consent cannot be assumed from the absence of a “no”; a clear “yes,” verbal or otherwise, is necessary. Consent to some sexual acts does not imply consent to others, nor does past consent to a given act imply present or future consent. Consent must be ongoing throughout a sexual encounter and can be revoked at any time.

Here are some standards to ensure consent is accurately identified.
1. Consent must be proactive action comprised of the following three components:
• Consent must be voluntary, meaning it is exercised under conditions of free will and thus cannot
be given when the following are present:
> Coercion or pressure
> Threat, intimidation, or fear

• Consent must be affirmative, as indicated through a “yes,” whether expressed verbally or
otherwise. Therefore, consent cannot be inferred from the following:
> Silence
> Passivity or lack of resistance
> Lack of active response

• Consent must be unambiguous. It must be clearly demonstrated through words and/or actions as
mutually understood by both individuals.

2. Consent cannot be given and/or is not valid when an individual is mentally or physically
incapacitated. This includes but is not limited to:
• Sleep
• Unconsciousness
• Intoxication due to drugs, alcohol, or other reasons

3. Consent is contemporaneous to the initiation of every sexual act and can be revoked at any time during
the course of a sexual encounter. Therefore, consent cannot be presumed by a prior or current sexual
or romantic relationship.

The usual perception is that unless a woman protested, resisted or if a woman was not modestly dressed, she was deemed to have consented. Silence, passiveness or ambiguous conduct cannot be construed as consent.

No means No. Yes means Yes and Silence means “NO”

Law also assumes absence of consent if the submission is due to force, fear, threat, fraud or exercise of authority.

Furthermore, to establish unwelcomeness or unwantedness, complainant is not required to prove that she had verbally protested or said “No” or conveyed in any other way that his behavior was unwelcome. It is sufficient for the complainant to establish that she by her conduct or body movement or body language conveyed to the perpetrator her disapproval of his advances. Moving away, not laughing, not participating, avoiding, change of topic, showing disinterest etc are some of the body language signs depicting NO consent.

Case studies – In one of the sexual harassment complaints handled by us, the aggrieved woman was called to the conference room for a knowledge transfer and was touched inappropriately. The woman being a junior executive, felt extremely scared to openly tell him that she is not liking it. When the touch became repetitive, she got visibly upset, and to avoid his advances, told him that “people were moving around, and they would see”. The man continued and she had to run away from the conference room. While conducting the inquiry, the man told the IC that there was consent as the woman never told him to stop and only said that “People are moving around, and they will see.” He assumed that she must be ok with the touch but is scared of people around and hence he continued his advances. He never realized that pulling her hand back, stepping back or running away from room was non-consent. For him, consent meant she verbally telling him “No”.

In another case of sexual harassment in an office party. The woman kept requesting a male colleague to join her for the dance. He initially refused but she was insisting that he join her at the dance floor. Her other colleagues who were around her also started forcing the man to join her since she was requesting him. The man reluctantly joined her. As the music got intense and loud, the man started enjoying the dance. After a while, the lights went dim and the music slow. The man found this as an opportunity to lay his hands on the woman. She kept resisting and throwing away his hands. The man continued groping her and she had to get away and stormed out of the dance floor. She subsequently made a compliant to the IC. During the inquiry proceedings, the man was surprised and asked for justification of the complaint as the act was done with consent. The lady argued that she never gave her consent. He said that she was the one who forced him to dance with her. The man claimed that the entire office saw her pulling his hand to the dance floor. The lady responded saying the consent was only for the dance and not for the inappropriate touch on the dance floor.

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