"No means no"
How exactly is "sexual consent" defined?
We all know that "sexual autonomy" is one of the fundamental human rights of every individual. We have the right to decide whom to have sex with and whom not to, regardless of who the other person is, no one can force an individual to act against their will. However, "acting against the will" is considered a psychological concept, since will refers to what a person is thinking, which is difficult to prove. Therefore, in the legal realm, the issue of "sexual abuse" is primarily seen as a "lack of consent" problem. That is, what the individual does can be legally recognized as "lack of consent to have sex with the other person."
"Utmost resistance" standard
For a long time, there has been a standard for determining "lack of consent" known worldwide as the "utmost resistance" standard.
This is an old "lack of consent" standard that requires the victim to resist to the utmost, even to the point of risking their life, to prove they really did not want to have sex.
In ancient times, people also held this stance, as in those times women did not have a status as subjects, often being considered as property of their husbands or families, and therefore, it was commonly said that "chastity is more important than life" or "it is better to starve to death than to lose virtue." Therefore, if you were faced with rape and did not fight for your chastity, then the law of that time would assume you agreed.
From today's perspective, this "sexual consent" standard is clearly absurd, as it does not focus on the rights of the victim, but rather on whether "chastity," this "property," has been preserved, and whether the patriarchy and marital system have been maintained.
But as absurd as it is, we find that even in 2024, many people around us still hold this logic. For example, in 2016, a judge of the federal court of Canada, Robin Camp, during the trial of a rape case, told the victim in court, "If you had kept your legs closed, you wouldn't have been raped." Subsequently, the judge was removed for inappropriate comments.
"Reasonable resistance" standard
Towards the second half of the 20th century, with the gradual increase in women's status and the progressive awakening of consciousness about their own rights, the "utmost resistance" standard began to be eliminated in the legal circles of various countries, evolving towards a "reasonable resistance" standard.
This new standard no longer required the victim to fight to the death, since, after all, life is more important than anything, but still demanded that the victim perform reasonable resistance to be recognized as expressing their "non-consent." For example, screaming for help, physical rejection, etc.
But the problem that arises is, what is considered reasonable resistance? Who decides it? Do crying and silence count as reasonable resistance? Moreover, in situations of threat and intimidation, if resistance could enrage the aggressor and put the individual's personal safety in serious danger, can't silence represent a rejection?
A classic case in this aspect is the People v. Dorsey case in the state of New York, United States. In August 1979, a 41-year-old victim was returning home from work and taking the elevator of her apartment building. In the elevator was also a young man, the defendant Dorsey. Dorsey, seeing that only the two of them were in the elevator, demanded the victim to take off her clothes. The victim, who was about 1.5 meters tall and weighed less than 60 kilograms, while Dorsey exceeded 1.7 meters and weighed 90 kilograms. The victim assessed the great difference in strength between them and then took off her clothes without screaming or resisting. Afterward, Dorsey left and the victim called the police.
The victim believed that her screams and resistance could enrage the aggressor and, to protect herself from further harm, decided not to resist. However, this did not mean she consented. Finally, the court accepted her argument and convicted Dorsey of rape.
In summary, we can see that it is not very reasonable when only resistance can represent a "non-consent" or a "rejection."
"No means no" standard
Therefore, the legal standard regarding "sexual consent" has evolved once again. Today, including our country, the main standard for determining "sexual consent" in law is the "no means no" standard.
That is, "simply saying no verbally means not consenting, it means a clear rejection."
The most classic case in this respect is the rape case of boxer Tyson in 1991, when Tyson, serving as a judge in a beauty contest, invited the 18-year-old champion, Desiree Washington, to dinner after the contest, inviting her for a ride in his luxury car. In the car, Tyson kissed Washington. In the early hours, the two arrived at the hotel where Tyson was staying, Tyson invited Washington to come up to his room for a moment, and she gladly accepted, the two sat together and watched television for a long time, then Tyson asked Washington to take a shower, and she did not refuse.
After showering, Washington found Tyson naked, wanting to have sex with her, Washington refused and pleaded bitterly, Tyson ignored Washington's pleas and rejection, and forced sexual intercourse.
A few days later, Washington reported Tyson for rape to the local police. During the trial, the 12 members of the jury, after 9 hours of discussion, unanimously decided that Tyson was guilty.
This case was judged with the "no means no" standard. From Tyson's perspective, the fact that the woman had had intimate behaviors with him before entering the hotel, and that she was alone with him in the hotel in the early hours, implied consent for sexual relations.
But neither the judge nor the jury accepted such "sexual consent," they considered Washington's verbal rejection to have clearly expressed her non-consent. In the end, Tyson was sentenced to 3 years in prison and branded for life as a rapist.
Even if some men sincerely believe that when a woman says "no", it's just an expression of shyness, just a "resistance game", then the law should abandon that playboy philosophy and make those men pay for their "prejudices".
In BDSM relationships, the parties often agree on a "safe word" to express rejection of the current situation. This is also fine, what I mean is that, no matter how rejection is expressed, verbal rejection is recognized by law as a clear way of denying "sexual consent".
"Yes means yes" standard
Furthermore, "no means no" is the legal minimum standard for dealing with "sexual consent", but morally, we should demand a higher standard from ourselves, that is, to adopt the affirmative principle of "yes means yes, else means no". This principle states that, regarding "sexual consent", unless the other party clearly expresses their consent, it will be considered that there is no consent.
Everything you do must have the other party's consent, and not assume that she/he consents.
That he/she kisses you does not mean that he/she consents to have sex;
That he/she consented yesterday does not mean that he/she consents today;
Only obtaining a clear affirmative answer means that he/she consents.
Why does the affirmative principle only apply to morality and cannot be applied to law? Professor Luo Xiang believes that would lead to the law punishing too broadly, since people cannot be constantly asking for the other's opinion, but it certainly should become a standard of self-discipline.
Whether you want to hold the other person's hand, enter into a BDSM situation, call the other person "master", or send them a picture, you really should first obtain their consent.
Of course, the "affirmation" principle also has its application in law, where it addresses the issue of drug addiction in cases of sexual assault.
When a person is unconscious and cannot say "no" to indicate rejection, does this mean that he/she consents to what follows? Obviously not, in this case, the law will adopt the "affirmation" principle, considering silence as a rejection.
Invalid sexual consent
After talking about the requirements of "sexual consent" from a moral and legal perspective, what follows is to tell you that, even achieving the "affirmation" principle, not all "sexual consent" is valid.
There are two situations in which sexual consent is invalid: the first is with minors, and the second is when consent is obtained from a person who is not in a condition to reason properly.
In our country, having sexual relations with children under 14 years of age is a crime in 100% of cases, since the law does not recognize the sexual consent of minors under 14 years of age, regardless of their gender.
Simply put, only people with the ability to reason properly and with a complete set of values are capable of considering whether they agree or not to engage in such an act, with such a person, in such a way. Our legislation considers that children under 14 years of age do not have this capacity.
Regarding the second type of "sexual consent obtained in a state in which the person cannot reason properly", one is the aforementioned case of losing consciousness, and the other is "consent obtained by abusing the position of trust".
For example, sexual violence from a teacher towards a student, or from a relative towards a child, often involves the abuse of influence. Although it seems that both parties voluntarily consent, in reality, it is an abuse of the position of trust, an objectification of the other, an exploitation.
In summary, in legal terms, the principle of "no means no" is mainly used to judge sexual consent, but this is only the minimum requirement for a person's moral line. We must maintain respect for the starry sky above us and adopt a higher standard for ourselves with the "affirmation" principle:
If when asking for the other party's sexual consent, they say, "No, thanks, I don't want to", do not force the person to want;
Do not get angry because the other party refuses, they have the right to do so, just as one day you can also refuse in the same way;
If when asking for the other party's sexual consent, they initially say, "Yes, no problem", but then tell you, "I've changed my mind, I no longer want to", it might really be frustrating, perhaps you were already prepared and feel disappointed, but the other party has the right to change their mind, and you have no right to force them to comply with the previous "consent";
If the other party has lost consciousness, for example, has drunk too much, then do not ask whether they consent or not, an unconscious person does not want to have sex;
Perhaps when you took the other party to the room, they were conscious and told you "Yes", but while you were showering, they lost consciousness and fell asleep, you need to forget that "Yes" and let them sleep peacefully.
If the other party gave you their consent last week, that was last week, do not cling to that saying "last week you clearly agreed"; or in the morning, directly waking up the person next to you saying, "Last night you agreed, what's the problem with doing it one more time this morning?" Past consent does not mean present consent, and you must obtain consent again today.
In short, we must respect ourselves and others, maintaining the dignity of both.