What are reasonable steps to ascertain consent to sexual acts?

In My Humble Opinion
1

In order to be convicted of a crime, the prosecution must prove that criminal act was performed (actus reus) and that the state of mind (mens rea) of the accused was worthy of blame.
This site provides a good summary of the actus reus and mens rea of sexual assault:

“Courts have interpreted that the actus reus of sexual assault is any non-consensual sexual touching."

Note that this means that as soon as you perform sexual touching on someone who does not consent at that time, the actus reus condition is satisfied.

"The mens rea of sexual assault is the intention to touch, and knowing of, or being reckless of the victim’s lack of consent. The accused may challenge the prosecutor’s evidence of mens rea by asserting an honest but mistaken belief in consent. The accused’s claim that he honestly and mistakenly believed in the victim’s consent must be a belief that the complainant had communicated her consent to him; it must not be tainted by any of the statutory factors vitiating consent; and it cannot be raised unless the accused took “reasonable steps, in the circumstances known to the accused at the time” to ascertain consent.”
http://www.julianhermida.com/crimrape.htm

Now, notice that last part, “reasonable steps”. After having read some case law concerning sexual assault, I’ve noticed that the concept of “reasonable steps” does not seem to be defined.
If you’re in the legal field, have you seen the concept of reasonable steps defined by the courts?

Even if you’re not in the legal field, what reasonable steps have you taken to ascertain consent? What reasonable steps have been taken towards you?

I once tried the Antioch College approach of asking for every further level of escalation. As I was kissing her, I asked if I could touch her breasts. Then I asked if I could lower her shirt to get them out. I was told in a very exasperated voice to “stop being so politically correct”. She later said about it that it was : “weak, fearful, and shows a lack of self esteem. It also suggests that you don’t really know what you’re doing. On my end, it made everything feel awkward and strained, rather than something spontaneous, passionate and natural.”

I’ve also heard many women express dislike or contempt for men who ask to kiss them before doing so. If a man kisses a woman when she does not want to be kissed, this satisfies the actus reus element of sexual assault*. If he did not take reasonable steps to ascertain her consent, what defence would he have? What reasonable steps ought one to take to preclude the risk of criminal liability being triggered?

*Sexual assault is broader than rape and can include a touch or a kiss.

2

Need answer fast?

A few years ago I heard a DJ on a Classic Rock station talking about the consent form that rockers typically use. I believe this occurred during a discussion about Kobe Bryant’s legal issues, and the DJ wondered why sports figures didn’t use the same type of consent form that many rock groups use. (For the life of me, I cannot remember the exact term that was used to describe the consent form.)

In any case, she was describing how the consent form included descriptions of specific acts to which the two parties could agree. (Yes, it does bring to mind MeatLoaf’s song, “I Would Do Anything For Love, But I Won’t Do That”.) She mentioned that while some found it a little off-putting at first, others also described it as a fun prelude to foreplay.

I would imagine that such a consent form might describe the degrees of “roughness” that might be permitted, and also a Safe Word to prevent further escalation. (Can’t you just imagine the lawyer that got to draw up the document?)

The DJ said that she believed this type of consent form was one of the big reasons why rock and roll stars weren’t regularly hauled before court for sexual assault. Apparently, having your partner’s initials next to specific acts and possessing signed documents provides some amount of legal protection. I think they may even go so far as to check the partner’s ID to make sure he or she is of legal age.

(I’m resisting calling the consent form a contract and making the obvious reference to “riders”.)

3

What was this, the exit interview on your relationship? :dubious:

Having your partner fill out an actual form might be going a step beyond reasonable steps to ascertain consent in most situations. :stuck_out_tongue:

IMO, to reasonably ascertain consent, your partner must be

  1. Awake*
  2. Not under the influence*
  3. Not struggling or saying “no”
  4. Reciprocating

I’ve had guys explicitly ask me, “Do you want to have sex?” which I don’t mind. I understand why they would want to draw that line of consent and I don’t find it kills the mood. However, there’s no need to ask for permission for each step.

*1 and 2 may be waived if you are in an established relationship where consent has been granted at an earlier time for sex under certain conditions.

4

I thought I remembered a case, and even a thread, that consent could not be assumed in these situations, even in the case of a long standing relationships. Off to the search function.

ETA: It was a Canadian supreme court case. Here’s the thread: http://boards.straightdope.com/sdmb/showthread.php?t=610328&highlight=consent+asleep

5

You can ask in a natural way (duh). Just do it in a fun way, as a natural part of your dirty talk.

“Do you like it like this?”
“Mmm, maybe we should move into the bedroom? (coy smile)”
“Naughty girl! You want me to ______?”

I mean, these sound a bit corny written out like this, and obviously you would need to tailor them to your personal situation, but you get the idea. It is perfectly possible to ask permission during foreplay, and gain consent before going further, and NOT sound like a passive dumbass. Slow down, wait for her to push it further. BE CERTAIN she is into it. If you are in doubt (she got quiet, she started laying still, she stiffened up) STOP what you are doing. Back up. See if she says something like, “Why did you stop!? Keep going!!” If she pulls away, too, then you can ask if she’s enjoying it. Listen to her. Don’t try to push it further if she seems hesitant.

By the way, you should do this because you don’t want to be the kind of asshole who hurts women, not in order to keep from getting arrested. It’s not about getting as close to the legal line as you can, it’s about respecting your partner, and viewing sex as something you both enjoy. It’s about wanting enthusiastic consent, because that is the fun kind of sex!

6

I’m not sure whether you’re asking a legal question, or for practical advice.

Legally, what’s ‘reasonable’ depends on the facts of the particular situation. What’s reasonable between a married couple with an active sex life is very different from what’s reasonable between two strangers on a bus.

Practically, well, I may not have the greatest depth of experience here, but if you think you’re so bad at judging whether a women is really willing that you want strict guidelines (based on a dating situation), I’d say the times to ask explicit permission are 1) establishing that the encounter is indeed a romantic date (IMO, guys are way too reluctant to ask ‘is this just hanging out or a romantic date?’; really, whatever the answer, you’re better off having asked); and 2) asking whether your partner wants sex (beyond making out/touching naughty bits). You should also probably make sure before moving forward from a kiss that there aren’t any negative reactions, but asking ‘may I kiss you?’ is probably not necessary. And of course, be ready to stop at any point upon request, but I think those 2 1/2 check-ins are probably enough to clear about everyone’s intentions while not being too frustratingly namby-pamby.
Oh, I’d probably add that unusual sexual acts should probably be negotiated, though as miss elizabeth points out, it shouldn’t be about ‘permission’ so much as ‘would you like X?’ (because you want to make her happy, right?)
And, again, as miss e. says, there’s a big difference between “May I touch your nipple/tuchus/earlobe?” every ten seconds, and “Do you like this?” or “You seem hesitant, are you OK with this?” or even just slowing down for a bit to see what the reaction is.

7

I’ve heard “Do you want to do this?” “Are you ready?,” and the to-the-point “Do you want to have sex?” All work and I’ve always appreciated it…it show good judgement and experience. Where you might go wrong is asking permission. It is not asking permission, which is awkward and kind of wimpy. It is about getting feedback about what a woman wants, which is always good technique.

Another classic is handing her the condom to put on.

To keep in mind is that crazy women can always just lie. So really, it’s not about following every letter of the law (which won’t protect you against crazy) but genuinely avoiding misunderstanding. That really shouldn’t be all that difficult.

8

To answer Quercus’ question about, I am looking for both.

Most of what you are telling me is about making sure she wants it after it’s been started and concern intercourse. But the reasonable steps must be taken before and sexual assault can be much less than rape.
Over here: Date Rape: Feminism, Philosophy, and the Law - Google Books

I found this: "The case involves a high school boy’s conviction for sexual assault. The boy has been engaged in kissing and caressing his date, an activity to which she had consented. The boy, without her consent, stuck his hand under the woman’s shirt, and touched her breast. The woman pushed his hand away, and the encounter came to an end, but her parents reported the incident to the police, who charged the boy.

In assuming the right to touch her breast without permission, the court held, the boy assault her. The judge was very clear. Consent to the kisses was not to be taken as consent to the touching of the breast. The decision assumed that consent to one kind of sexual act cannot be taken as consent to another kind. And the boy was guilty because hefailed ot take reasonable steps to determine whether it was all right to touch the woman’s breast."

Case: R. V. W. (p.) (December 8, 1993) Doc. CA C10992, C11203, C11319, C11457, C11458, C11459 (Ont C.A.) Affirming (Feb. 20, 1992) Lock, HJ (Ont. General Division)
So, the reasonable steps must be taken before, not after it’s been started by asking if the other person likes it.

9

It is true that there have been cases where (what most people would judge) innocent behavior has resulted in (probably unfair) convictions. And it is also true that a person can never know if their partner is going to be the type to make false accusations, or blow the situation out of proportion. Just as a person never knows when they get into their car whether they’ll be killed in a car accident. Or struck by a meteor. These things range from uncommon to incredibly rare, but still. They happen.

Of course, their are steps you can take to reduce your risks, but ultimately sex is a risky proposition for everyone involved. Women risk sexual assault; men risk false accusations (among other risks, both extraordinary and mundane). Getting to know the other person, well, before beginning sexual acts is a good plan, but that doesn’t always work, nor it it always preferable. A certain amount of risk is just there, and almost nothing can truly mitigate that fact. I suppose in cases of false accusations, as in pregnancy, total abstinence is the only 100% foolproof safety.

However, all that being said, the steps outlined about are very good for reducing your risk to a reasonable, manageable level. Beyond that, it’s up to you to decide what level of risk you are comfortable with, and the amount of spontaneity you are willing to lose to reduce your risk. It’s a balancing act. But, I think most adults would agree that it’s relatively easy to reduce your risk to a quite small level, and to still have plenty of sexy fun time. The ideas above are good for that. But nothing is 100%.