James S Namalira
Recently, I came across Rockstar Dinosaur Pirate Princess’ ‘Cup of Tea' Sexual Consent Metaphor, and I was really amazed with the reality of the metaphor to the world of generation equality against the sticky patriarchal mindset which wrongly defines consent despite the relevant legal instruments guarding it. I quote the metaphor, ‘Just imagine instead of initiating sex, you’re making them a cup of tea. You say ‘hey, would you like a cup of tea?’ and they go ‘omg f*** yes, I would f***ing LOVE a cup of tea! Thank you!’ then you know they want a cup of tea. If they say ‘No thank you’ then don’t make them tea. At all don’t make them drink tea; don’t get annoyed at them for not wanting tea. They just don’t want tea, ok?”
Issues of consent have been discussed for so long and some people agree (while others disagree) that in a relationship both parties have the right to consent to sex. Due to the dominance of patriarchy, consent is differently defined with much favor towards men. Men assume having rights to demand or denounce sex while women are obliged to succumb at all cost to the sexual needs of their partners if they are to sustain the relationship. Once I engaged in discussion with men where eight out of ten expressed their belief that women have no right to choose when to have sex as far as men demand it. I also engaged some women and eight out of ten expressed that they might wish to demand for sex and give consent but due to patriarchal culture they have no say whether they want it or not. Two women confided that sometimes they do have sexual intercourse without having any feelings for it, just to fulfill the demand of men. Some men believe that if a woman smiles or pays them a visit, it’s a clear sign of consent. In other societies men believe that a woman cannot say yes but they say no and there is a need to force them even removing their underwear, yes they believe that a woman would not say yes until the last act of the sexual intercourse. Is this really true? Is this sexual consent?
The University of Michigan[1] defines consent as a clear and unambiguous agreement, expressed outwardly through mutually understandable words or actions, to engage in a particular activity. Consent must be voluntarily given and cannot be obtained through coercion or force[2]. If you are to assess whether consent was freely sought and given, the issue is whether the Respondent knew, or reasonably should have known, that the activity in question was not consensual or that the claimant was unable to consent due to incapacitation. The following checklist can help to understand sexual consent;
- A person who initiates a specific sexual activity is responsible for obtaining consent for that activity.
- Consent is not to be inferred from silence, passivity, or a lack of resistance, and relying on non- verbal communication alone may not be sufficient to ascertain consent.
- Consent is not to be inferred from an existing or previous dating or sexual relationship. Even in the context of a relationship, there must be mutual consent to engage in any sexual activity each time it occurs[3].
- Consent to engage in one sexual activity at one time is not consent to engage in a different sexual activity or to engage in the same sexual activity on a later occasion.
- Consent to engage in sexual activity with one person is not consent to engage in sexual activity with any other person.
- Consent can be withdrawn by any party at any point. Once consent is withdrawn, the sexual activity must cease immediately.
Then what if I do not respect the consent rules? Different countries have different laws that criminalize sex without consent (ie, Rape). In Malawi the Penal code section 132[4] address consent issue through rape definition; ‘Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, shall be guilty of the felony termed rape’[5]. Consent is paramount and a woman is not to be forced to have sex, but be asked for it and say ‘yes I want sex’. If unasked for, there are punishments on section 133; ‘Any person who commits the offence of rape shall be liable to be punished with death or imprisonment for life’, and Section 134 stipulates that anyone attempting to rape shall be guilty of a felony and be liable to imprisonment for life.[6]
Mind you sexual consent is Yes I need Sex
[1] University of Michigan Policy & Procedures on Student Sexual and Gender-Based Misconduct and Other Forms of Interpersonal Violence https://studentsexualmisconductpolicy.umich.edu/content/1-consent
[2] Ibid
[4] The Malawi Penal Code Cap7:01 of the Laws of Malawi S132 Rape
[5] 4 Ibid
[6] 4 Ibid