In the United States, the legal definition of consent is slightly different in each state. In California, the Penal Code reads:
In prosecutions where consent is an issue, “consent” shall be defined to mean a positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act of transaction involved. A current or previous dating or marital relationship shall not be sufficient to constitute consent (261.6). A person’s request that a condom or other birth control device be used does not constitute consent (261.7).
To determine if consent exists or not, two questions must be answered: Could the person consent under the law, and if so, did the person consent?
A person who cannot give consent under the law includes the following:
- A minor below the age of 18
- A person incapable to give consent because of a mental disorder
- A person incapable to give consent because of a physical disability
If a person does not meet the aforementioned, they have the ability to give consent. However, they are not considered to give consent in the following circumstances:
- A person is unconscious or asleep
- A person is not aware, knowing, perceiving, or cognizant that the act occurred
- A person is not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud
- A person is unable to resist because of an intoxicating or anesthetic substance; this state of intoxication should have been known to the perpetrator
It is important to engage in communication before, during, and after sexual activities. Silence is not consent. Anything besides a resounding, consensual “yes” is grounds for sexual assault. We at SexInfo recommend that each person involved in sexual activities explicitly give consent to such acts that will ensue with a big, enthusiastic “YES!”