Commentary: Sleeping women can’t consent to sexual activity
SINGAPORE: A fog of defoliation hovers over sexual consent and what it really looks like.
In no other sexual assault case in recent history has this been more obvious than the case involving Singapore Management Academy (SMU) student Lee Yan Ru, who was sentenced on Monday (25 Oct) to 10 months' jail and iii strokes of the pikestaff for molesting a woman during an overnight study session in 2019.
The question of consent was key, since the perpetrator admitted to making repeated concrete advances towards the victim - ultimately rubbing his ballocks on the victim's sleeping form and ejaculating on her face, neck and pilus - without asking her for consent.
The perpetrator claimed she was "fine" with his advances. He also earlier testified that when the victim said "stop" - woken up by a feeling of heaviness on her body - he interpreted it equally "carry on", and that context mattered in evaluating what "finish" meant.
Even if we write off the defence's arguments as terminal-ditch attempts to escape punishment, they are disturbingly echoed in many social media comments fabricated since the judgment was announced.
This defoliation over consent worries many women's rights activists, because acts of sexual violence are defined primarily by a lack of consent.
Yet while most people would agree, in theory, on the basic principle that "no means no", the perpetrator's testimony and the comments on social media evidence an incomplete agreement of how even an expressed "no" plays out in reality.
Worse, in this case, the woman was unable to consent because - equally the judge noted - she was asleep when Lee started performing the sexual act on her.
CONSENT IS SPECIFIC
A mutual thread that runs between the perpetrator's testimony and netizens' comments relates to how the victim's behaviour earlier in the night was "misleading".
The perpetrator testified in court that he thought the whole night was "a progressive thing" and that she was "okay with my advances".
His testimony repeats a common misunderstanding about consent: That consenting to one activity once constitutes consent for other activities, or for the same activity at other times.
Yet consenting to buss someone doesn't give them the permission to fondle yous. Having sex with someone in the past doesn't mean consenting to sexual activities in the future.
Consent is an ongoing chat. Fifty-fifty if the victim in the SMU case had verbally consented to the perpetrator resting his feet on her thighs earlier in the night (which she clarified she hadn't), that wouldn't mean he had permission to rub himself on her chest in the forenoon.
The perpetrator should have sought consent again with each "progressive" physical or sex.
Another aspect of the confusion over consent in this case is what one netizen calls the "signals" the victim was sending: "If she was uncomfortable with his advances, why didn't she go out?"
When asked this in courtroom, the victim herself cited other reasons, including not wanting to "leave a bad impression" equally they had common friends, and there beingness "no manner of send" available in the middle of the nighttime - nothing to do with her desire to engage in sex activity.
The bottom line is this: Since it's impossible to divine what some other person is thinking and feeling, it is best to actively ask and communicate feelings of being ready, safe, aroused, desirous and physically responsive earlier engaging in sexual activity.
"Finish" DOESN'T MEAN CARRY ON
Withal, how is it possible for someone to hear "finish" and sympathise it equally "comport on"?
At that place is the misguided conventionalities that women offer "token resistance" - that they typically say "no" when they really mean "yes" - as function of culturally prescribed scripts for sexual interactions. Indeed, the defense in this case relied heavily on this trope, characterising the victim's attitude as "coy".
Researchers phone call these "sexual scripts" - outdated narratives where men initiate and pursue sex activity and women are gatekeepers responsible for limiting and proverb no.
These scripts assume that men take an uncontrollable desire for sex, something we saw in the SMU case too. The perpetrator wanted "release" in a "moment of lust" - playing into the male stereotype of an unmanageable libido.
Request FOR CONSENT IS NOT UNROMANTIC
Consent creates a prophylactic space and teaches us to respect people's boundaries. Yet many mutter that asking for consent before each specific activity is unromantic. Much better - the statement goes - to read your partner's heed without having to utter a single word.
Nonetheless in that location are many ways of phrasing the consent question that do not "impale the mood". For example, "does this feel nice? Do y'all like this?"
Some argue that not-verbal affirmations, such as nodding or noises of pleasure - as opposed to passive signals, like silence or lack of resistance - can be taken as consent. Just as humans may exist neurologically difficult-wired to meet what we want to see, we should not rely entirely on non-verbal cues.
Mind to what Yard Shanmugam had to say nearly women'south bug:
It'south not that women don't know how to clearly assert non-consent, which implies that crimes like sexual assail are merely cases of miscommunication. Equally this SMU case very powerfully shows, even explicit refusals are often ignored or overruled.
Such issues accept led some, similar the law commissioner of New South Wales in Australia, to suggest the need for an app for couples to establish and record mutual consent before engaging in sexual activity.
All the same critics argue that this approach promotes a contractual understanding of sexual relations. Consent cannot be deduced from an app and information technology cannot exist negotiated alee of time. It's about communication in the moment.
A better method might be the acronym used widely by women's organisations around the world: Consent is every bit easy as FRIES - it should be Freely given, Reversible, Informed, Enthusiastic and Specific.
Making sure you empathise this before engaging in sex is probably easier and fashion more constructive than an app.
AN ACTIVE DEFINITION OF CONSENT
Some jurisdictions have already strengthened consent legislation.
Under its so-called "yep means yes" legislation, Tasmanian law requires the accused to show they did or said something to find out if a person was consenting. Perpetrators cannot rely on the "mistaken, but reasonable belief" defense that consent was provided.
Locally, Singapore's Penal Lawmaking sub-section ninety highlights that consent is not valid under specific circumstances, such every bit if given by a person who is under fright of injury or wrongful restraint, mentally unsound or incapacitated, intoxicated or nether the influence of substances, or otherwise unable to understand the nature and event of what they are consenting to.
Would an active definition of consent go farther? AWARE's experiences with sexual assault survivors and interactions with medical practitioners, social workers and the constabulary suggest perhaps a clear, statutory definition of consent, from a public education point of view, is needed.
One possible option is based on case constabulary, referred to in a 2022 case of rape at Sentosa. Although the total definition is too long to reproduce, hither'due south a paraphrased version for consideration: "Consent is the complimentary, informed and voluntary participation in the sexual action in question. Lack of resistance and submission to sexual activity, in itself, is non consent as a thing of law."
Parents and teenagers also suggest including consent equally 1 of the mainstays of sexuality education in schools, and then that stereotypical sexual scripts can be debated.
Let's not keep using the disturbing trope of Prince Charming kissing a sleeping Snowfall White equally a template for real-life sexual interactions.
Shailey Hingorani is head of research and advocacy at AWARE.
Source: https://cnalifestyle.channelnewsasia.com/commentary/sleeping-women-cannot-consent-sexual-activity-smu-molest-286216
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